Would a Justice Kagan Sidestep Gay Issues?

By admin

Originally published on Advocate.com May 10 2010 5:10 PM ET

President Barack Obama announced Monday that Elena Kagan, current U.S. solicitor general and former dean of the Harvard Law School, is his second nominee to the U.S. Supreme Court.

Should Congress confirm Kagan, however, it’s possible that she would recuse herself from several cases, including major gay rights suits, currently being handled by the Justice Department during her short tenure.

The cases in question include Gill et al v. Office of Personnel Management et al, a suit challenging a section of the Defense of Marriage Act that was argued in federal court last week, and Log Cabin Republicans v. United States of America, a case involving “don’t ask, don’t tell.”

Kagan’s ability to rule in those lawsuits as a Supreme Court justice would depend on the amount of input she had in them while serving at the Justice Department. Though neither case is currently before the court, Ronald D. Rotunda, a professor of law at Chapman University, said Kagan might have taken part in the preparation.

“She may have had a role in [deciding] how the litigation proceeds, because the government wants to have a proper procedural posture in order to decide what positions it will take,” Rotunda said.

This is true for cases across the board. “There is no reason to single out LGBT-related issues," said Richard W. Painter, a professor at University of Minnesota Law School. "The recusal would apply to all cases she was involved with on any issue.”

It’s not always clear in which cases the solicitor general’s office has given its input, however. “If her name is on any [legal] brief, then it’s clear, but beyond that, it’s up to her disclosure,” said Erwin Chemerinsky, founding dean of the University of California, Irvine, School of Law.

While the decision would be left to Kagan, Chemerinsky said a recusal in, for instance, the Gill case challenging DOMA could prove problematic for LGBT advocates.

"If Kagan recuses herself, it certainly will hurt the challengers to DOMA because Stevens -- or his replacement -- would be so important for the challengers," he said. Based on the makeup of the court, conservatives and progressives could deliver a possible 4-4 split, which would mean that
the lower circuit ruling would remain law. The court’s split decision
would not set a precedent.

In a Monday afternoon press briefing, White House spokesman Robert Gibbs said the administration expects “about a dozen” recusals for Kagan next year and “less than half of that” the following year. But he did not name specific cases and he said he did not think the potential effect of her recusal on any cases had been given serious consideration during the nomination process.

By comparison, Justice Thurgood Marshall, who served two years at solicitor general before being confirmed, recused himself from 57 cases related to his work at that Justice Department, according to SCOTUSblog.

ELENA KAGAN 20100510 X390 (GETTY) | ADVOCATE.COMSources said there is no reason why Kagan would not be eligible to hear the federal challenge to California’s Proposition 8, Perry v. Schwarzenegger, should the Supreme Court eventually take the case, because the Justice Department is not defending the state ballot initiative in court.

If confirmed, Kagan, the nation’s first female solicitor general, would be the third woman sitting on the current Supreme Court, representing the greatest number of women to ever concurrently sit on the nation’s high court. She would also be the only non-judge to be elevated to the court since Justices Lewis F. Powell and William Rehnquist, both who were confirmed in 1971. Rehnquist became chief justice in 1986, a position he held for nearly 19 years.

“[Kagan] believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law,” President Barack Obama said Monday at a ceremony in the East Room of the White House.

Obama sought to paint Kagan, who would replace retiring justice John Paul Stevens, as a centrist and a “consensus builder.”

“Elena is respected not just for her intellect and record of achievement but also for her temperament, her openness to a broad array of viewpoints,” Obama said. “Her habit, to borrow a phrase from Justice Stevens, of understanding before disagreeing. Her fair-mindedness and skill as a consensus builder.”

Though Kagan is said to have developed a good rapport with conservatives such as Justice Antonin Scalia while representing the U.S. government before the Supreme Court, Republican lawmakers such as senators Jon Kyl of Arizona and Orrin Hatch of Utah, who voted to confirm her nomination as solicitor general, have already begun to set the stage for a battle over judicial philosophy.“My conclusion will be based on evidence, not blind faith,” Hatch said in a statement following her nomination. “Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her.”

Conservatives have also criticized Kagan’s decision to bar military recruiters from using Harvard Law School’s office of career services because she felt DADT violated Harvard’s nondiscrimination policy. But Gibbs dismissed that criticism during the briefing. “I think its important to understand that there was never a pause in military recruitment at Harvard Law School,” he said.

While accepting the nomination, Kagan gave little indication of her judicial philosophy other than saying it would be “a special honor” to fill the seat of Justice Stevens and invoking the contribution of the late justice Thurgood Marshall, the first African-American to sit on the court, who she said “did more to promote justice over the course of his legal career than did any lawyer in his lifetime.”

Kagan also echoed the president’s sentiments regarding her team-building approach.

“I had the privilege of leading one of the world’s great law schools and of working there to bring people together and to help ensure that they and the school were making the largest possible contribution to the public good, both in this country and around the world,” she said.