The Wall Street Journal has an article on Solicitor General Elena Kagan’s position on same-sex “marriage” and how political opponents of her possible nomination to the Supreme Court could focus on such culture war issues (subscription required). Ed Whelan discusses the article in The Corner and makes the important point that “Kagan has taken actions in her SG capacity that operate to undermine Don’t Ask, Don’t Tell and the Defense of Marriage Act.” There was weekend speculation that President Obama would avoid a controversial pick and George Will said on This Week that it the United States was possibly moving beyond highly contentious judicial nomination fights, noting that John Paul Stevens was approved 98-0 in 1975. But that is wishful thinking if not complete folly, and as it should be. The president is owed some deference in his appointments, but at the same time the courts are important and the Supreme Court supremely so. Conservatives might rightly decry the extra-constitutional powers the Supreme Court has assumed in legislating from the bench but William Yeomans is accurately describing the reality of modern politics when he says “the court is, in many ways, a legislature of nine.” Because of that, the close scrutiny and partisan battles and votes are not only merited but required.
