Deb Price | Elena Kagan: Supreme Poker Player

Elena Kagan is in line for a pivotal seat on the Supreme Court, the one being vacated by ardent gay ally Justice John Paul Stevens. She literally could decide which way the closely divided court tips on the next wave of gay cases.

How would she rule on whether Uncle Sam can deny federal benefits to gay couples legally married in their home states?

How might she rule on Don’t Ask, Don’t Tell? Or, if Congress only partially dismantles the ban on serving openly, what might she decide about restrictions, such as separate quarters for gay soldiers?

What about custody disputes between gay parents living in different states, or such fairness issues as the extra tax gay couples face on spousal health benefits? And how about whether state bans on gay marriage violate the Constitution?

Kagan has never been a judge, so she lacks the usual stack of rulings that at least hint at how a potential justice might behave.

And, on gay issues, she is, well, frustrating because of her frequent attacks of legal amnesia.

Consider this: She was dean of Harvard Law School in Cambridge, Mass., on Nov. 18, 2003, the day that state’s Supreme Judicial Court ruled in favor of marriage for gay couples. Yet during Senate deliberations last year on her nomination to be U.S. solicitor general, here’s how she responded to questions about that landmark ruling:

“I have never studied the Massachusetts Constitution, judicial interpretations of that document or the SJC’s decision, so I do not have an informed view.

“I moderated a panel on the SJC’s decision at Harvard Law School on Feb. 5, 2004, but do not recall stating any views of my own at this event. (I have provided a tape of this event to the Judiciary Committee.) I suspect I participated in informal conversation about the decision when it came out, but I cannot remember anything that I said.”

Imagine being a gifted legal scholar at the world’s most hopping intellectual community and yet, in hindsight, you can’t recall taking a peek at a landmark civil rights ruling or chatting about it in line at Starbucks?

Here are cards Kagan, who acts like a supremely skilled poker player, was willing to show last year:

  • Gay marriage: “There is no federal constitutional right to same-sex marriage.” Asked whether she’d “ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage” — a question not about current law but rather what a Supreme Court justice might decide — she experienced another bout of amnesia: “I do not recall ever expressing an opinion on tis question.
  • Don’t Ask, Don’t Tell: Under the threat of federal funds being cut off to Harvard, she opened up the law school’s Office of Career Services to military recruiters. In an email to students in 2003, she wrote, “I abhor the military’s discriminatory recruitment policy,” calling it “a profound wrong — a moral injustice of the first order.” As a candidate for solicitor general, she said she couldn’t recall ever voicing an opinion on the constitutionality of Don’t Ask, Don’t Tell.
  • Gut instinct on gays: Even as she sought to assure senators she would vigorously defend “Don’t Ask, Don’t Tell” as the government’s lawyer, she declared, “I view as unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion and sexual orientation.”

Truth is, we can’t be certain how any of today’s justices will rule in the next wave of gay cases. At best, counting Stevens, there’s probably a 5-4 majority favoring basic gay rights.

Kagan looks like she’ll easily win confirmation. Expect lots of amnesia at her confirmation hearings, though. Once on the court, when Kagan starts showing all her cards, I predict they will be very gay-friendly

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues.

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