Over at his blog Legal Insurrection, Cornell Law Professor William A. Jacobson speculates that gay marriage will come up when President Obama’s nominee to replace Justice Souter faces his (or her) Senate confirmation hearings. In Supreme Court confirmation hearings it has become the new abortion. “Unlike abortion, gay marriage has not gained wide political acceptance on a national political level (unlike “civil unions” which are gaining acceptance).”
It is an interesting post with much food for thought and good run-down of two potential nominees’ (Kathleen Sullivan and Elena Kagan) views on whether or not there is a constitutional “right” to marriage. Jacobson contends that “Any nominee who has come out for gay marriage constitutional rights in the past, or dares to say so during the confirmation process, likely is not confirmable.”
Interesting thought that.
Not sure I agree with him there, may need to think about it for a while, but do agree with him when he writes, “There is no indication that Obama wants a fight over gay marriage, or wants his first Supreme Court nomination to turn on that issue. But he may not be able to avoid the issue, as much as he may like to do so.” I’ll go one step further; I’m willing to bet that the President doesn’t want a fight over the issue, rather the Judiciary Committee avoid the issue altogether in the confirmation hearings.
But, Obama’s wishes notwithstanding, gay marriage will definitely come up. Read the whole thing!