NBC News reports that President Obama will nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court. Who is this nominee? MSNBC.com has “The Skinny on Elena Kagan.”
Will there be any drama with this appointment? The Washington Post speculated last month that there might be some controversy about her tenure as the Dean of Harvard Law School. She called the military’s “Don’t Ask, Don’t Tell” policy a “moral injustice of the first order” and sought to ban military recruiters from the campus of Harvard University. She believed their presence violated Harvard’s non-discrimination policy. A federal law nevertheless required Harvard to allow the recruiters on campus, and the Supreme Court ultimately upheld the law in an 8-0 decision. The upshot of all this is that Kagan ended up taking a position that was to the left of the most liberal members of the Supreme Courtâ€”Stevens, Souter, Ginsburg, and Breyer. Read the Post’s coverage here.
How did Kagan do in the Senate confirmation process for her nomination as Solicitor General? She sailed through on a 61-31 vote. Seven Republicans voted in favor of her appointment: Coburn, Collins, Gregg, Hatch, Kyl, Lugar, Snowe. You can read the roll-call vote here.
How will this appointment affect the court’s balance vis a vis Roe v. Wade? Not at all. Kagan replaces a pro-Roe Justice, so the status quo remains on Roe.
How will this appointment affect the court’s balance vis a vis cases involving homosexual marriage/gay rights? Here’s what Ed Whelan reported last month:
“A Wall Street Journal article today on controversy over Supreme Court candidate Elena Kagan’s stances on gay-rights issues quotes Kagan as stating (in a written answer during her confirmation process for Solicitor General), ‘There is no federal constitutional right to same-sex marriage.’ Unfortunately, the passage fails to make clear, as Kagan clarified in further follow-up, that she was merely describing the current state of the law, not offering her own view how the Constitution should best be read.
“The WSJ article addresses Kagan’s extremist rhetoric and actions as Harvard law school dean against the Don’t Ask, Don’t Tell law and the Solomon Amendment (including the utterly implausible legal analysis that she embraced in an amicus brief). It’s worth highlighting that Kagan has also taken actions in her SG capacity that operate to undermine Don’t Ask, Don’t Tell and the Defense of Marriage Act.”