New Front Opens in Supreme Court Confirmation Farce


It’s really hard to think of a sadder spectacle in small-d democratic politics than Supreme Court confirmation battles. They’re always changing, and yet always the same. Apparently the right’s new idea is to make the nominee answer questions about gay marriage. The goal, of course, will be to get the nominee to admit to her secret plan to force Orrin Hatch into a sinful-yet-matrimonial union with Larry Craig. The nominee will stonewall. This episode from the recent past is a preview of the future:

Noting that as solicitor general [Elana] Kagan would be charged with defending the 1996 marriage law, Sen. John Cornyn (R-Tex.) asked in a written question to Kagan whether she believes in a constitutional right to same-sex marriage. “There is no federal constitutional right to same-sex marriage,” Kagan responded.

When Cornyn sought Kagan’s opinion of the Massachusetts high court’s ruling in 2003 in favor of same-sex marriage, she said she could not recall expressing one. “I suspect I participated in informal conversation about the decision when it came out, but I cannot remember anything that I said,” Kagan wrote.

Soon, we’ll get an all-amnesiac SCOTUS. The future’s going to be awesome.

Tactically, a shift in focus away from abortion and toward marriage equality actually strikes me as pretty misguided. You really could imagine the Supreme Court substantially narrowing the constitutional protections of Roe and Casey over the next couple of years or even overturning it on a medium-range time-frame. And if constitutional jurisprudence changes, many states will adopt more restrictive abortion laws. But no amount of screwing around with the Supreme Court is going to halt the turn toward gay and lesbian equality.

Politicians who devote a lot of time and energy in 2009 to holding back the tide are just going to look more monstrous in retrospect than their colleagues who found other things to be busybodies about. Does anyone think that in 2039 anyone’s going to be proudly and publicly talking about how “I got my start working for Senator so-and-so trying to stop loving couples from getting married?”