Do President Obama's Supreme Court nominations discriminate against parents?

Via Julie Ponzi, Jules Crittenden wonders why Barack Obama can't nominate "soccer moms who went to a state school" to the Supreme Court:

I’d add that President Obama seems bent on packing the court with people who never had children, and would suggest that if you haven’t had your sleep disturbed for years on end; haven’t subjugated everything in your life to someone else’s interests … as opposed to subjugating everything to your career interests … and neve changed a diaper except, say, as a boutique experience; if you haven’t seen your hopes and dreams grow up, charge off in their own direction and start talking back to you; if you haven’t dealt with abuse of authority and human rights issues sometimes encountered in dealings with obtuse school officials, class bullies and town sports leagues; then there’s a high risk your understanding of life may be somewhat … academic.

It’s a humbling experience, parenthood. As well as an inspiring one that gives life meaning. It also, as a friend of mine once put it, makes you sane. Even while it drives you crazy. Put another way, it’s part of the maturation thing.

This sounds suspiciously like pining for a conservative version of "empathy" as a Supreme Court criteria (as Ponzi herself kind of suggests). But nevermind that. The real question here is: Why shouldn't childless Americans also be represented on the court?

Lots of people, after all, don't have kids. One estimate in 2006 suggested that 20 percent of women ages 40 to 44 or childless -- a pretty healthy proportion. But of the court's current membership, only Sonia Sotomayor is without children. (Antonin Scalia has nine kids. Statistically speaking, he more than makes up for Kagan and Sotomayor all by himself.) Bringing Kagan onto the court would mean that just more than 20 percent of justices are childless. So it all works out.

As it happens, I think it's fine to bat around these kinds of questions when looking at justices. I think the conservative approach to judicial philosophy -- were it practiced with any kind of rigor -- would reduce judging to a sterile intellectual exercise, where input A gives you output B. Lots of time, that is the case. But the Supreme Court decides the cases that are more complicated than that. And because law is made by, interpreted by and affects fallible human beings, I think it's naive, at best, to suggest that life experiences won't play a role in judging. So let's look at those life experiences! We'd think it weird if we had a courtful of childless justices, after all. It would also be weird if we had a court that only had parents on it.

Elena Kagan and the Supreme Court: Time to start electing justices

In this week's Scripps Howard column with my colleague Ben Boychuk, I say we don't know enough -- and won't know enough -- about Elena Kagan before she's confirmed to the Supreme Court. And I suggest we can solve this ongoing problem by forcing Supreme Court nominees to face American voters directly:

Heck no, we don't know enough about Elena Kagan. Then again, we didn't really know enough about John Roberts or any other Supreme Court nominee of recent vintage. That's the way the game is played: Smart nominees shut their mouths, still their pens and aim for an air of patriotic inscrutability. Barring scandal, they end up confirmed anyway -- and only then do we find out what they really believe. Kagan will probably be no exception.

Americans deserve to know more about the thinking and philosophy of the nominees who receive lifetime appointments to one of our nation's most powerful institutions. It's time to start putting our Supreme Court nominees to a vote of the American people.

"The Supreme Court has the power to affect lives, yet the judicial branch is unelected," political scientist Richard Davis wrote in his 2005 book, "Electing Justice: Fixing the Supreme Court Nomination Process." "In a democracy, the people should have the right to examine candidates for the court, including their views on issues that will affect the lives of citizens."

Yes: Supreme Court justices are supposed to be insulated from political pressures. The modern nominating process doesn't really work that way. The media and interest-group scrutiny of nominees -- along with the charges and countercharges, and the money spent on media campaigns -- can be every bit as intense as you'd find in a presidential campaign. We already have the politics; why not have an election? Judges in most states already face voters. Direct public scrutiny might shake up the kabuki routine of today's nominating process, and bring some much-needed accountability into the system.

Kagan might make a fine Supreme Court justice, but we can't be sure and the current process won't help us find out. Let her make her case to the American voters.

It's worth saying -- I didn't have the space in my half of the column -- that the justices wouldn't have to be completely subject to partisan pressures under this scenario. Davis in his book suggests a couple of different ways judicial selection could work, but they all involve the president making the nomination and the Senate offering a thumbs-up or thumbs-down before sending the recommendation (or recommendations: it could be a slate of candidates for the spot) to the American people for a final vote. (He also recommends justices be limited to one 18-year term, which I think might also be dandy.)

Funny thing is, I'm not really one of those guys who believes that every controversial issue should be put up to a referendum. But I think it's weird that a whole branch of so-called democratic government is oblivious to ... democracy.

Bob Corker, mortgages and down payments: I wish the Republicans had won this battle

I think Sen. Bob Corker has the right idea with his proposal to require home buyers to put 5 percent down on the purchase of a new home in order to qualify for a mortgage. And I can honestly say I'm disappointed with Democrats for defeating the proposal.

Opponents of Corker's measure apparently say it disproportionately affected minority communities. Seems to me that it really affects people who simply cannot afford to buy a house. And that's unfortunate: In my perfect socialist world, everybody would have the resources to own their own. That's not the world we live in, though, and it seems Corker's proposal would have gone a little way toward saving potential homebuyers and banks, both, from their own worst practices. The alternative is bailout culture and/or massive rounds of foreclosures. That can't be good for anybody, can it?

Let Cam & Mitchell kiss on 'Modern Family!'

Turns out I'm not the only one to notice that "Modern Family's" gay couple isn't very affectionate. Now there's a Facebook group -- nearly 6,000 members strong -- devoted to letting the pair kiss. And the producers have responded:

"Cameron and Mitchell are a loving, grounded, committed, and demonstrably affectionate couple and have been from the beginning of the series. It happens that we have an episode in the works that addresses Mitchell's slight discomfort with public displays of affection. It will air in the fall and until then, as Phil Dunphy would say, everyone please chillax."

Hey: I love "Modern Family" -- along with "Community," the funniest show of the 2009-10 season -- but that "slight discomfort with public displays of affection" is ... narratively convenient. And I don't think it's going to fool anybody. Certainly, we see Cam & Mitchell in private moments together, yet they still don't kiss.

I don't need "Modern Family" to be a gay makeout show. But it's done the foundational work of presenting the gay family as just another strand of a broader American family. Their very "normalness" makes it all the more glaring that they're not given the same kissy-face privileges as the show's straight couples.

Can you be a Hillary Clinton fan and a Tea Partier?

Over at Slate, Hanna Rosin asks if the Tea Party is a "feminist" movement. To the extent that "feminist" isn't used as a synonym for "liberal woman," I think the answer is probably ... no. Yes, women are taking lots of leadership roles in the Tea Party movement -- and good for them! -- but I'm guessing that movement might lose some of its coherence if it became focused on "women's issues."

That said, I'm always perplexed when journalists turn up these types of folks:

For the last few years Anna Barone, a Tea Party leader from Mount Vernon, N.Y., has used the e-mail handle annaforhillary.com: "The way they treated Hillary is unforgiveable, and then they did it to Sarah Palin," she said. "I've been to 15 Tea Party meetings and never heard a woman called a name just because she's powerful. I guess you could say the Tea Party is where I truly became a feminist."

Wait. Really?

Don't get me wrong: I think it's true that both Hillary Clinton and Sarah Palin received some sexist treatment in 2008. I'm just bewildered how one can go from being a Clinton backer to a Tea Partier in that time and have it be a consistent journey.

What's really earned the ire of the Tea Partiers this last year? Bailouts aside, it's been the Obama health reform bill -- which the TP critics say is A) too expensive and B) socializes the health care industry. Fine. But my question for Barone is: You realize that Obamacare is just the new name for Hillarycare, right? Right?

If you backed Hillary Clinton, you were backing a big expansion of the federal role in health care. Period. If you backed that, it's difficult for me to believe you'd be rolling with the Tea Partiers. Is Barone being disingenuous? Tribalistic? Or am I missing something?

Elena Kagan, Ralph Reed and the Second Amendment

This Ralph Reed -- remember him? -- post at The Corner, about Elena Kagan's radical tendencies, deserves a thorough fisking. But there's one point in particular that I found interesting. And by "interesting" I mean "dishonest."

In response to questions during her confirmation as solicitor general, Kagan argued the Second Amendment right to keep and bear arms, like freedom of speech, enjoys “strong but not unlimited protection.” This is a dangerous view of the law when it leads to the creeping erosion of the Bill of Rights.

Why is this dishonest? Because if you check what Kagan said at her solicitor general hearings, it's clear that she was citing DC vs. Heller, the 2008 case that upheld gun rights. This is a fuller and untruncated quote of what she said:

Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

Is that really "a dangerous view of the law?" Consider this: Kagan was basically echoing the Heller decision in making her statement about the limits of the Second Amendment -- a decision written by Justice Antonin Scalia. Scalia wrote:

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to castdoubt on longstanding prohibitions on the possession of firearms byfelons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Is Ralph Reed really going to say that Antonin Scalia -- about as solid a Second Amendment absolutist as you'll find on the court -- has a "dangerous view of the law?" Of course not. So if he's saying the same view of the law is dangerous when held by Elena Kagan, well, you can be sure he's doing so in the service of dishonest hackery. Ralph Reed isn't telling the truth.

Elena Kagan and the undergraduate gotcha game

When I was 21, it's fair to say that I was to the left of my evangelical Mennonite college campus on the question of homosexuality. It's not that I didn't think homosexuality was sinful -- I did, and thought the Bible fairly clear on that point; I just felt that my fellow Christians were making too big a deal about it.

I've ... changed quite a bit since then. I've left the church, so "sin" doesn't really enter the equation for me; I've been -- for the past few years -- as vocal a proponent of marriage rights for gays as I know how to be. The person I was at 21 was aiming at the person I am at 37, to be certain, but the distance between here and there is considerable.

All of which brings me to this: You'll be hearing a lot over the next few days about Elena Kagan's undergraduate thesis on the "sad" demise of socialism in early 20th century New York City, a kind of knowing "proof" of her (and by extention, President Obama's) radical leanings. And it's silly. Kagan was no older than 21 when she wrote that piece; she's had an entire adult lifetime since then to evolve in her views -- a lifetime in which she's been a person more of the left than the right, to be certain, but without anything in the way of reported socialist leanings since then. Maybe she is a socialist, but the fact that she was sympathetic to socialism at the age of 21 isn't proof of much.

We spend way too much time analyzing the adolescent selves of our leaders when we evaluate their fitness for service. So Bill Clinton's marijuana smoking was seen as troubling, as was George W. Bush's service (or lack thereof) in the Air National Guard. And while perhaps those incidents could tell you something about the way those young men were aimed, they couldn't tell us that much about how they'd govern some 30 years later. We'd be better off judging our leaders by their adult lives and their record of public service. Trying to play "gotcha" with somebody's undergrad writings is a loser's game.