Whelan distorts Kagan's SG record to claim that she is an ideologue

››› ››› ADAM SHAH

Ed Whelan baselessly claimed that, as Solicitor General, Elena Kagan has "indulged her own ideological views ... on gay rights" rather than defend federal law. In fact, neither of the cases Whelan cites support his claims that Kagan did not vigorously defend federal laws in court -- as the Solicitor General is required to do.

Whelan baselessly hits Kagan on "Don't Ask Don't Tell" and Defense of Marriage Act

From Whelan's May 10 National Review Online blog post:

Kagan has argued that the Senate should carefully explore a nominee's views on judicial philosophy generally and on hotly contested constitutional issues in particular. Her argument has special force for someone who has been so guarded about her own views. Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal: as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don't Ask, Don't Tell law and the Defense of Marriage Act that she is dutybound to defend.

DOJ followed precedent in its actions in DOMA case

Whelan suggested Kagan "br[oke] her vows" because DOJ abandoned an argument in favor of DOMA. Whelan's May 10 blog post links to a prior item Whelan wrote in which he attacked the Justice Department for filing a brief that "gratuitously abandoned strong grounds for defending DOMA as it asserted that it 'does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.' " As Whelan acknowledged, the Justice Department continued to defend DOMA on other bases in that case.

It's not unprecedented for DOJ to abandon arguments; the Bush administration did so in a Second Amendment case. In the 2001 case of United States v. Emerson -- a criminal federal gun crime prosecution -- the U.S. Court of Appeals rejected the argument advanced by the federal government that "stare decisis requires us to reverse the district court's embrace of the individual rights model" of the Second Amendment and held that the Second Amendment did cover individual rights. The Fifth Circuit nevertheless held that the statute at issue did not violate the Second Amendment. Subsequently, the defendant appealed to the Supreme Court. In its brief asking the Court not to hear the case, the Bush Justice Department abandoned the argument that the Second Amendment did not cover individual rights.

Attorney General Ashcroft: Justice is not best achieved "by making any available argument that might win a case." In a letter to U.S. Attorneys directing them not to argue that the Second Amendment did not protect individual rights, Ashcroft wrote:

Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

Some courts have rejected the argument that same-sex marriage is related to "government interests in procreation and child-rearing" has been rejected. Some state courts have explicitly rejected the argument that bans procreation and child-rearing bear any relationship to same-sex marriage bans. For instance, in Goodrich v. Department of Public Health, the Massachusetts Supreme Judicial Court stated that the Massachusetts same-sex marriage ban was not based on a procreation rationale because Massachusetts law "contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce."

DOJ followed longstanding precedent in "Don't Ask, Don't Tell" case

Whelan claimed that Kagan should have appealed "Don't Ask Don't Tell" case to the Supreme Court. Whelan's May 10 blog post links to two prior items attacking Kagan for not appealing Witt v. Department of Air Force, a case in which a decorated officer challenged her suspension from the Air Force under the military's discriminatory "Don't Ask, Don't Tell" policy. After losing in the district court, the plaintiff appealed to the Ninth Circuit, which reversed the district court decision and sent the case back for further proceedings. Whelan argued that the decision by the Solicitor General not to appeal the Ninth Circuit's decision to the Supreme Court likely was a "betrayal of her promise" to defend "Don't Ask, Don't Tell" vigorously.

The case Whelan cited did not find "Don't Ask, Don't Tell" unconstitutional. As Whelan acknowledges, the appellate court did not find that the "Don't Ask, Don't Tell" policy was unconstitutional. Rather the U.S. Court of Appeals for the Ninth Circuit found that the district court reviewed the "Don't Ask Don't Tell" policy under too lenient a standard. The Ninth Circuit held that, because the Supreme Court has held that the right to engage in "adult consensual sexual acts" is a fundamental right, courts must subject the Air Force's treatment of Witt to a more stringent level of review. The Ninth Circuit sent the case back to the trial court to determine whether Witt was deprived of her constitutional rights and did not decide whether the "Don't Ask, Don't Tell" policy was unconstitutional.

Holder reportedly said DOJ did not appeal the case because the decision was not final. According to Whelan, Holder stated that the the decision not appeal the case to the Supreme Court was made "after extensive consultation with the Department of Defense and is based on the longstanding presumption against Supreme Court review of interlocutory decisions as well as practical litigation considerations."

The Supreme Court has said that it prefers not to hear cases until the lower courts have made a final judgment even in important cases. In Brotherhood of Locomotive Firemen & Engineers v. Bangor & Aroostook Railroad Co., the Supreme Court refused to hear a case in which the lower courts had not yet issued a final judgment -- so called "interlocutory" appeals. The Court said: "[B]ecause the Court of Appeals remanded the case, it is not yet ripe for review by this Court." And in Virginia Military Institute v. United States, a case dealing with whether VMI's single-sex policy was unconstitutional, the Court denied review with Justice Scalia writing: "Whether it is constitutional for a State to have a men only military school is an issue that should receive the attention of this Court before, rather than after, a national institution as venerable as the Virginia Military Institute is compelled to transform itself. This present petition, however, seeks our intervention before the litigation below has come to final judgment." Scalia later added: "We generally await final judgment in the lower courts before exercising our certiorari jurisdiction." The Supreme Court eventually did here the arguments three years later in United States v. Virginia and decided that VMI's admissions policies were unconstitutional.

Solicitor General's office has repeatedly opposed Supreme Court review of cases on the grounds that the case was not final. The Solicitor General has repeatedly argued -- during different administrations, including Republican administrations -- that the Supreme Court should decide not to hear cases on the grounds that decisions by the lower court was not final.

DOJ has continued to defend the "Don't Ask, Don't Tell" policy. The civil division of the Department of Justice, Federal Programs Branch, went on to vigorously defend the Don't Ask, Don't Tell policy as late as April 26, 2010, in a brief for the case Log Cabin Republicans v. United States, arguing that (retrieved via Pacer):

Because Congress could rationally have concluded that the DADT policy is necessary to maintain unit cohesion, accommodate personal privacy, and reduce sexual tension for military effectiveness, LCR's facial due process challenge fails.

Posted In
Government, Nominations & Appointments, The Judiciary
National Review Online
Ed Whelan
Supreme Court Nominations, Elena Kagan
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