Kagan Confirmed To The High Court

On August 7, 2010, following her confirmation by the U.S. Senate, Elena Kagan became the fourth female Justice in the Supreme Court’s history, and the third on the current bench, which represents the most presiding female Justices on the High Court ever.  Kagan is also the first Justice in nearly four decades without any prior experience as a judge.  However, blazing new trails is nothing new to the New York City native.  Despite never being a judge, Kagan has a first-rate resume.  After attending Princeton, Oxford and Harvard Law School, she clerked for civil rights patriarch and Supreme Court Justice Thurgood Marshall, worked in the White House under former President Bill Clinton, served as the first female Dean at Harvard Law School and was selected in 2009 by President Obama to become the first female Solicitor General in the history of our country (to name a few of her accomplishments).

While Kagan’s story is undeniably a mantra to hard work and determination, she faced many challenges in securing her seat on the high court.  During her confirmation, Kagan maneuvered through a thicket of challenges, leading questions, attacks on her credibility and senatorial comments and also faced debate from the African-American community on her stance on affirmative action and other diversity initiatives.  However, amidst all of this, she conducted herself with poise, grace and humor and won praise from liberals and conservatives alike while successfully navigating through the confirmation process relatively unscathed.  As the newest member of the Court, Kagan has not really changed the court’s ideological makeup, since she replaced the liberal John Paul Stevens but she has definitely added relative youth to the liberal wing of the court, which became more conservative under President Bush.  While many questions remain unanswered and although time will determine Kagan’s views and ultimately her legacy on the Court, Kagan’s confirmation is truly remarkable.  It took almost 200 years to get the first woman on the Supreme Court, and now women make up 1/3 of the present presiding justices.  However, Kagan will certainly have to face many challenges but despite varied criticisms, the general consensus is that she is well poised to succeed.  She has a command of the law, an innate ability to build majorities and an empathetic disposition that will suit her well as she is tasked to serve as a supreme arbiter of justice.

Federal Court Judge Overturns California’s Same-Sex Marriage Ban

In a historic decision, U.S. District Court Chief Judge Vaughn R. Walker, struck down Proposition 8, thus allowing gays and lesbians in California the constitutional right to marry.  Proposition 8 was passed by voters in 2008 by a 52.3% margin, six-months after the California Supreme Court ruled that same-sex marriage was permitted.  That decision has led to a fire storm of controversy and debate on a national and international level.  Judge  Walker’s decision, at least for the moment, has provided the gay and lesbian community with some degree of resolution.  However, the ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.   In articulating his decision, Judge Walker said “Proposition 8 violated the federal constitutional rights of gays and lesbians to marry the partners of their choice and created an irrational classification on the basis of sexual orientation.” 

During the 2 ½ week trial, 16 witnesses were called by opponents of Proposition 8 and only 2 were called by proponents of the measure.  In support of their contentions that Proposition 8 was rationale and justified, supporters of the provision argued that children fare best with both a father and a mother.  However, witnesses for the defense, quickly refuted this assertion citing to studies that showed children reared from birth by same-sex couples fared as well as those born to opposite-sex parents and that marriage would benefit the families of gays and lesbians.

Many consider this human rights issue the predominant civil rights issue of our time.  Reminiscent to the 1960s when African-Americans picketed and boycotted to demand equal rights, the gay and lesbian community has united against similar injustices.  Just as the law evolved to incorporate and acknowledge equal rights for African-Americans, women and other marginalized groups throughout our country’s history,  it is now evolving to recognize the gay and lesbian community as equal members of our society.  It is important that we respect the law and understand that the common law system of jurisprudence, which is the system in place in our country, is a continuously evolving body of laws, which is tasked to adapt to the changing circumstances in American society.  That being said, we cannot simultaneously employ the law to adapt to the changes in society and then question why it is doing so.