[tweetmeme]

Well, who didn’t see that coming. On the left, Andrew Sullivan is demanding to know if Elena Kagan is gay, and on the right, the American Family Association and Americans for Truth are slapping a “no gays here” sign on the Supreme Court.

By claiming “no lesbian is qualified to sit on the Supreme Court,” the AFA and AFT put themselves on the fringe of politics and society. While there are obvious political benefits for the president in a history-making appointment, the sexuality of a nominee should never be a determining factor in whether they are qualified for a position on the court, either as a positive or negative. How will you interpret the law? When it comes to getting the job, how you answer that question matters most.

An aside: Robert Gibbs today referred to me as “that person”, but his quotes indicate he may never have read my actual piece. Given that I was not lodging an attack but citing a potential political benefit, it may be that, as the Columbia Journalism Review noted, the White House now wishes it had just issued a mild correction.

[tweetmeme]

Conventional wisdom carries the day: the Supreme Court nominee is Elena Kagan, ensuring my future appearance on occasional public radio broadcasts.

While certainly left of center, Kagan has a more moderate record than other potential nominees. She’s attracted the ire of Glenn Greenwald and the tepid support of the president’s liberal base. Issues like her work on the Citizens United case, where she was at the center of a controversy over the government’s ability to ban books, could come up:

“[Kagan] also stated that “pamphlets,” unlike books, were clearly fair game for government censorship.”

But given that the opposition will be overwhelmingly from the right, I’d expect roughly 75% of Kagan’s hearing to be about ROTC-related stuff, the sort of thing which plays for the base but accomplishes nothing more.

This is a safe, moderate choice for Obama. It makes one wonder whether the White House added up the numbers on a more divisive candidate, such as Wood, and found them lacking? Kagan may be a more moderate justice than Stevens, and in the future, the left may remember this nomination as a missed opportunity to more dramatically shift the court.

[tweetmeme]

More and more folks seem to think that Obama will choose Diane Wood for the Supreme Court opening in the next week or so. It’s a choice which will make abortion the number one issue during her confirmation hearings, as opposed to a pick less outspoken on the subject.

One possible political explanation for this rationale is that Obama doesn’t particularly care about making the left happy — despite their frustrations with the White House, where are they going to go? — but does care about making “teabagging racists” mad as heck, ensuring they will be extreme and yell and stuff, scaring away the moderates and anyone who isn’t white.

With the Sotomayor nomination, Obama’s choice had a political benefit on ethnic grounds. This time, his pick could come down to Wood and a fight over abortion, or making a choice to mend fences with the gay rights crowd. But what if Obama doesn’t particularly care about the catcalls and protests? What if he sees far more political benefit to angering his enemies — in picking Wood so he can show the world what nasty intolerant people pro-lifers are?

It’d be the Chicago way.

Follow Ben Domenech on Twitter.

[tweetmeme]

I have a piece at the Huffington Post today responding to the White House and others on Elena Kagan and the blowback for my post last week:

I erroneously believed that Ms. Kagan was openly gay not because of, as Stein describes it, a “whisper campaign” on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally. And as the reaction from Julian Sanchez and Matt Yglesias shows, I was not alone in that apparently inaccurate belief.

Look, it’s 2010 — no one should care if a nominee to any position is gay. The fact that conservative Senators John Cornyn and Jeff Sessions have recently expressed openness to confirming an openly gay nominee to the Court is a good thing. Senators should look at things that actually matter — evaluating a nominee’s decisions, approach to the law, their judgment and ability — to see whether there are actually good and relevant reasons to oppose the nomination.

[tweetmeme]

Update: The White House has seen fit to take the effort to respond to my description of Elena Kagan’s sexuality, and Howard Kurtz asked me to comment. Here’s how I responded:

Since the position opened on the court, there have been abundant numbers of commenters and bloggers on the Left arguing openly about the potential political reactions of appointing either Sullivan or Karlan as the first openly gay members of the court. The idea of history-making appointments always has great appeal, and it’s one reason I supported Sonia Sotomayor’s nomination, a lonely position for any conservative — and when the first openly gay nominee is advanced, it will be a true statement about how far we’ve come as a society. When that does happen, it will be an issue of political discussion, whether we like it or not. It obviously has nothing to do with whether they are a good nominee or not [Note: Sens. Cornyn and Sessions are right on this].

I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post. But if I were her, I’d feel pretty good about the fact that the White House specifically responded to this — it seems like a clue as to who the pick will be, doesn’t it?

Sources numerous and equally dismissible report that President Obama has a “Top Ten” list of potential SCOTUS candidates to replace the outgoing John Paul Stevens. Since no one can honestly claim to know what the president is thinking, here’s my stab at his top ten (after conferring with a few TNL friends) as potential choices, with pluses and minuses for each. Trust me – you’ll want to stick around for the 10th.

1. Elena Kagan (49), Solicitor General of the United States. The likeliest candidate, and it was somewhat of a surprise she didn’t get picked last time. Pluses: would please much of Obama’s base, follows diversity politics of Sotomayor with first openly gay justice (so would Karlan and Sullivan). [Update: While Karlan and Sullivan are open about it, I have to correct my text here to say that Kagan is apparently still closeted -- odd, because her female partner is rather well known in Harvard circles.] [Update: see my apology to Ms. Kagan at Huffington Post] Minuses: Seen as too moderate by some on the left; people like Arianna Huffington and Glenn Greenwald strongly dislike her because of her positions on executive power and anti-terror activities. Could be seen as a thumb in the eye of the civil liberties folks.

2. Diane Wood (59) of 7th Circuit Court of Appeals. The second most likely candidate, at least according to conventional wisdom. Pluses: whip smart, beloved by liberals, would be a strong force on the court. Minuses: Will turn 60 before she would be seated; more importantly, this would be a court fight purely about abortion, and the likeliest to spark furious response from the right.

3. Cass Sunstein (55) of the White House Office of Information and Regulatory Affairs. Pluses: massive liberal brain, unquestioned for his scholarly ability. Minuses: has some personal issues, the break with Martha Nussbaum was a messy one, and has a long paper trail on everything under the sun. Is disliked by the civil liberties left, but Sunstein’s opinions are for the most part consistent with what Obama’s done as president (if not what he actually promised while running). Bonus Plus/Minus: as I was one of very few conservative bloggers to support Sotomayor’s nomination as the best candidate of a bad lot, I would similarly find Sunstein in that position this year, as does Pejman Yousefzadeh.

4. Pam Karlan (51) of Stanford. Pluses: Karlan is frequently called a liberal dreamboat candidate, and deservedly so thanks to her acidic approach. This would make up for any disatisfaction with Sotomayor for the left. Minuses: Video like this abounds thanks to Karlan’s constant media appearances, and she didn’t make his list before for a reason.

5. Merrick Garland (58) of the DC Circuit Court of Appeals. Safe choice, loved by the Washington insiders, boring liberal with a moderate temperament. Pluses: would probably get the most votes and the least opposition, and get approved well before November. Minuses: really doesn’t get the White House anything — loved by all the Ivy League insiders who already adore Obama.

6. Harold Koh (55) of the State Department. Pluses: Koh would be a brilliant, kamikaze pick, designed to make the civil libertarians do flips, and with the kind of inspirational family story Obama liked so much in Sotomayor. Minuses: After Wood, maybe the second most divisive candidate. Harold Koh’s background is, as Ted Bromund has written, that of a profoundly dedicated transnationalist.

7. Kathleen Sullivan (55) of Quinn Emanuel Urquhart & Sullivan. Pluses: Former mentor Laurence Tribe called her “the most extraordinary student I had ever had.” Strong liberal who’s passed up other opportunities for a shot at the federal bench. Minuses: Failed her first try at the California bar exam. And Dahlia Lithwick would have a lot of fun writing about her.

8. Jennifer Granholm (51) of Michigan. Only included because she’s always mentioned, including again by the WaPo here. Pluses: parachutes a young former rising star into a court where she will toe the political line. Minuses: brings the focus on how much she’s effed up Michigan, seems like pure political silliness to discuss her as a replacement for a liberal institution like Stevens.

9. Deval Patrick (53) of Massachusetts. Similar calculus to Granholm, and one that would surely have an advocate in David Axelrod within the White House. Pluses: parachutes a young former rising star into a court where he will toe the political line (also, maybe you’ll goad a conservative into calling him an affirmative action pick). Minuses: brings the focus on how much he’s effed up Massachusetts, seems like pure political silliness to discuss him as a replacement for a liberal institution like Stevens.

which brings us to…drumroll…

10. Hillary Clinton (62) of the State Department. Now that you’ve stopped laughing, consider: here’s one way of getting rid of what remains a dicey political problem, rewarding a crew of still-bitter supporters, ensuring easy Senate passage (talk about a nominee as vetted as it gets) while firmly reasserting control over what is steadily becoming your administration’s rogue department at Foggy Bottom. Pluses: She’s Hillary Clinton. Minuses: She’s Hillary Clinton.

Follow Ben Domenech on Twitter.

Sometimes, when it comes to an issue like abortion, people slip up and say what they mean. It’s seldom a point deemed appropriate for public discussion, but on occasion someone will point out that a hugely disproportionate number of abortions are executed upon black and Hispanic children. Occasionally, a pro-life person will even go so far as to wonder whether, for many supporters of legalized abortions, this fact is a feature of the system, not a bug. Supporters of legalized abortion at this point, offended by the idea, will typically recoil in horror at the suggestion, insisting that no responsible supporter of legalized abortion feels that way. Most abortion proponents will then insist that the disproportionate numbers of minority abortions is an unintended (and surely undesirable!) consequence of this nonetheless important social policy.

Thankfully, we have people like Justice Ruth Bader Ginsburg around to remind us what an insidious lie this is, as she does in this weekend’s New York Times:

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. [Emphasis mine]

There is no way to interpret this statement that does not expose the ugly underbelly of a significant part of the legalized abortion movement. After all, the statistics are unambiguous–the “populations” that are effectively culled by abortion are overwhelmingly blacks and hispanics. One could expand Justice Ginsburg’s statement to its furthest charitable limit and say that Justice Ginsburg didn’t think that blacks and hispanics shouldn’t have their populations kept down, specifically, but rather that just in general we don’t want to have too many poor or unwanted people hanging around. This argument would have much in common with that found in the bestselling book Freakonomics, which used crime statistics to argue that abortion filled a communal need by casting out the “weak” to ensure the “strong” survive, with a coldly calculating description of ethnic cleansing.

Yet even if we suppose that Justice Ginsburg was not proceeding from the Freakonomics perspective, and was instead totally uninformed about the statistics of abortion today, there is no escaping the fact that she believes that there is an identifiable group of people that society “[doesn't] want to have too many of.” And by “[doesn't] want to have too many of,” she means “they should be killed in utero,” disposed of with medical precision before they are allowed to take a breath.

Eliminate the fact that this is an elderly woman, a Supreme Court Justice who has received the fawning praise of the left for decades: There is no identifiable “population” you can plug into that statement and reach any conclusion other than that the person who would say such a thing is, morally speaking, a monster who deserves to be shunned by polite society.

Of course, the problem is not merely confined to one of the leading lights of liberal, pro-abortion legal thought. Over the years, it has become clear that Ginsburg’s assessment of the situation is essentially correct: the leading crusaders of the abortion movement wanted abortion legalized not because they believed fundamentally in the freedom of women to kill their children in utero, but rather because society had too many undesirables who needed culling from the herd. As explained by Ron Weddington, the abortion lobby’s counsel in the Roe v. Wade case, abortion is a very useful tool to “eliminate the barely educated, unhealthy, and poor section of our country.” And in case President Clinton, the recipient of his statement, needed further hints as to whom Weddington was referring, the abortion attorney was happy to oblige: “for every Jesse Jackson who has fought his way out of the poverty of a large family there are millions mired in poverty, drugs, and crime.” Ah, so it’s them you want to do away with.

Today, the Senate is about to take up another nomination, and another nominee in Sonia Sotomayor who sees a surprising number of issues in unequivocally racial terms. If history has taught us anything, it is that unchecked power — placed in the hands of a person who sees the world as ever-defined by ethnicity, who makes judgments based on the color of a person’s skin in any capacity — always yields disastrous results. While I personally support Sonia Sotomayor’s confirmation, and believe she is qualified to sit on the court, these are questions she must answer and answer fully. Will our Senate learn from these lessons of history, or rather blithely doom us to repeat them? Will they heed Justice Ginsburg’s dismissal of these comments as irrelevant, or will they ask Judge Sotomayor to answer the questions that have been raised about her repeated statements regarding “inherent physiological differences” measured across ethnic lines? We shall see.

As for Justice Ginsburg, she will of course never be shunned in polite company for her recent statement. As a lifetime appointee to the Supreme Court, Justice Ginsburg speaks from an unassailable position can say any monstrous thing she wishes to say, and no one will take her seat or her power from her. Though she would perhaps do well to remember this bit of writing from Cormac McCarthy:

Here a year or two back me and Loretta went to a conference in Corpus Christi and I got set next to this woman, she was the wife of somebody or other. And she kept talking about the right wing this and the right wing that. I ain’t even sure what she meant by it. The people I know are mostly just common people. Common as dirt, as the sayin goes. I told her that and she looked at me funny. She thought I was sayin somethin bad about em, but of course that’s a high compliment in my part of the world. She kept on, kept on. Finally told me, said: I don’t like the way this country is headed. I want my granddaughter to be able to have an abortion. And I said well mam I don’t think you got any worries about the way the country is headed. The way I see it goin I don’t have much doubt but what she’ll be able to have an abortion. I’m going to say that not only will she be able to have an abortion, she’ll be able to have you put to sleep. Which pretty much ended the conversation.

For a counterpoint, Pejman Yousefzadeh offers his case against Sonia Sotomayor’s nomination here. To comment on the subject, visit his blog.

A friend asked today if I was proud to have “one of your own” on the Supreme Court. In the larger sense, I share Puerto Rico’s Republican Gov. Luis Fortuno’s sentiments: having a Latino legal scholar on the highest court is a good thing for the country, and having a Puerto Rican who experienced adversity adds some small amount of personal pride. Yet it is a particularly fleeting form of pride at best, the sort you get when your hometown team wins a pennant in a sport you don’t follow.

Personally, I would have preferred Obama’s check the box for the first Latino justice (assuming we’re all agreeing Benjamin Cardozo doesn’t count for diversity purposes) with someone like Secretary of the Interior Ken Salazar — but Sonia Sotomayor represents a nominee who is, on paper at least, qualified for the position. There is no doubt she will be confirmed by the Senate. And I believe, despite her clear reputation for liberalism and advocacy from the bench, my friends on the center-right should be happy that she is President Obama’s choice.

Given an early opportunity to remake the Court in his image, Obama has once again passed on the wishes of his more leftward supporters — who certainly gave as many signals as possible that they preferred Diane Wood or Elena Kagan — instead choosing to nod toward racial and ethnic political considerations. Some Hispanic leaders had expressed disappointment with the makeup of the cabinet after Bill Richardson’s withdrawal — and with David Souter’s retirement, this unexpected opportunity to play this game was too good for Obama to pass up. He’s very good at it.

Being a nominee to the Court these days puts you in the crosshairs of everyone and his Twitter followers, right and left, poring over the records of everything you’ve ever said, particularly speeches on hot button issues containing comments on how “wise Latinas” will by default reach better legal conclusions than a “white male” with his limited personal experience.

So yes, Republicans in the Senate should ask all these questions about these statements, and more. They shouldn’t rubber stamp this nominee out of fears of appearing bigoted, since those in the media assume they’re all bigoted already (expect an SNL sketch with Senator Sessions as a tobacco-chewing Confederate soldier yesterday). As Manuel Miranda, perhaps the most famous Hispanic Judiciary Committee staffer in recent history, put it in a statement yesterday:

The fact that Sonia Sotomayor is a Latina should not give Repubilcan senators any political pause or hesitation from giving her the scrutiny that all nominees deserve. There is no larger demographic group in America today that could better understand what it means to have courts and judges who favor one side over another, without an argument ever being made, than do Hispanics. It is among the reasons why we came here. This nomination offers a great opportunity to explain to Hispanic Americans why the Constitution must be defended against judges who would rewrite it according to personal politics and biases.

Some on the left are deploying the record of Republican “Aye” votes for Sotomayor at her initial nomination to the Second Circuit, but they should remember that she was originally part of a deal with Daniel Patrick Moynihan, and votes at the time aren’t particularly representative. After all, Sotomayor has an 11-year record on the appellate bench since then, and it would be silly to suggest that Senators should ignore that record. And past confirmations did nothing to help Robert Bork, who was confirmed as Solicitor General and as a Circuit Judge by the full Senate.

And in the unlikely event that Senate Republicans do put up a fight, it is a sign that they have accepted President Obama’s highly politicized view of the judiciary. Obama, who voted against both Roberts and Alito (in fact, he was one of only 25 Senators to vote in favor of filibustering Alito and one of just 22 to vote against Roberts), set a distinct precedent by voting against men he publicly acknowledged as “clearly qualified” for their positions on the Court — opposing them for purely political reasons.

This is not how it always was. The tradition of Senatorial deference to the executive branch was a powerful one, and died slowly: as recently as 1991, Clarence Thomas was confirmed by a 52-48 margin despite the Democrats holding a 57 seat majority, just two fewer than they do today. It is impossible to imagine such a circumstance today, and Thomas was certainly more controversial as a nominee at the time than Sotomayor could ever become (barring a hearing meltdown or some other unforeseen event — one assumes the Administration made sure she has paid her taxes). Thomas has since proven not only eminently qualified but intellectually distinctive as a Justice, and only the most extreme partisans would say he was not fit for the court on the merits — but a similar scandal, even a manufactured one, would be enough to derail a nominee not favored by the majority party.

Of course, now that they are the majority party, the Democrats who were prepared to put Roberts and Alito through similar paces and were frustrated in their efforts are prematurely criticizing Republicans for adopting their tactics of the past eight years. Dahlia Lithwick is one of the observers of the court who wants to put the horse back in the barn — but she is late to the game, and the internet remembers what you wrote under a different administration.

They shouldn’t have anything to worry about from the right. Besides Senators Sessions and Coburn, it’s doubtful any of the members of the Judiciary Committee will do more than ruffle Sotomayor’s feathers. While it may be true that Sotomayor was the candidate on Obama’s short list most likely to inspire conservative opposition, the criticisms they have of Sotomayor come down to concerns over her decisions and her reputation for being an oft-overruled liberal. These complaints are the sort to rile up any Federalist Society member, but they simply are not transferable to any sort of public uproar, even including the likely overturning of her ruling on racial preferences and firefighters — it should be a minor embarrassment, but one that would only matter if the margin in the Senate were reversed.

If anything, the first priority for the White House should be for reassuring a few of their most outspoken allies on the left, who already are expressing worry that as a Latino Catholic, Sotomayor could be a less than eager defender of Roe v. Wade. This is worth noting: given the chance to select Diane Wood, a brilliant legal voice and a hardened defender of unrestricted abortion rights, Obama went for the personal story that would appeal to the media instead, disappointing once again some of his supporters. It is possible, yes, that Sotomayor is personally an abortion centrist. But the pro- and anti-abortion groups should fall in normal lines on this nominee — her decisions in favor of anti-abortion policies weren’t based on opposition to Roe, and in viewing the entirety of her background, Sotomayor gives no signs of being a stealth nominee for the pro-life cause.

This is what it all comes down to, in fact. As John Yoo notes, Sotomayor gives no signs of being a threat or an asset to any particular cause. It’s unlikely that she’ll be further left than the man she’s replacing, and if she has the gift for motivating or shifting her fellow justices, she hasn’t displayed it on the Second Circuit, where even after 17 years, no one regards her as a leader. She is, in other words, unlikely to shift the Supreme Court in any direction, to any significant degree, from where it was before her arrival.

So is Judge Sotomayor a liberal? Yes. On paper, does her resume make her qualified? Despite questions about her decisions, yes (certainly moreso than Harriet Miers). Will she vote as Souter did on Roe and other divisive social issues, her vaunted empathy extending only to those people who happen to be walking around? Almost assuredly. Should constitutional originalists, textualists, and strict constructionists approve of this nominee? Of course not.

But on balance, is she the least troublesome choice for the Supreme Court that those on the center-right could reasonably expect from this president — who, for all his moderate policies in other areas, is unreserved about being on the far left of the legal community — embodying both a Lifetime movie and a fulfillment of said judicial philosophy? I believe the answer is, emphatically, yes.

Benjamin Domenech is the Editor in Chief of The New Ledger.

My most recent oped over at the Washington Times concerns Barack Obama’s rapid political evolution on the issues of gun rights and the death penalty. An excerpt:

The second case, of which the Beltway population is very well aware, concerned the first decision in over a century that determines the scope of the Second Amendment´s protection for an individual right to keep and bear arms. On this matter, Sen. Obama had been equally definitive. Just this November, when asked by the Chicago Tribune about their candidate´s opinion, the campaign responded that “Sen. Obama believes the D.C. handgun law is constitutional.” In the Illinois State Senate, he voted to ban gun shows, supported limiting citizen´s right to purchase guns, opposed allowing retired police officers to have the right to concealed carry, and opposed protecting homeowners who fire upon an intruder in self defense from lawsuits. To this day, he supports overriding state laws with a nationwide federal ban on concealed carry permits.

On this matter as well, Sen. Obama evolved. In this case, the word the campaign chose to use was “inartful.” “That statement was obviously an inartful attempt to explain the Senator’s consistent position,” spokesman Bill Burton told ABC News.

Barack Obama, it appears, does not know the Barack Obama who believed the DC gun ban, the most extreme in the nation, to be constitutional.