Judicial Appointments

Chris Christie Appoints Gay Marriage Supporter to the Bench

The great conservative hope, at least according to the likes of Ann Coulter, recently appointed a gentleman named Bruce Harris to the New Jersey Supreme Court.  Harris is openly gay –  a point that Christie made sure to highlight when he introduced Harris as his nominee.  Unsurprisingly Harris is a supporter of gay marriage, and has been very vocal on this issue.   Blogger Paul Mulshine reprints an email that Harris sent to Republican legislators in the state:

As a Republican elected official and someone who has worked hard (and successfully) to get Republicans elected in Chatham Borough, it disturbs me that same-sex marriage has become a Republican versus Democrat issue (understanding there are some Democrats who do not support same-sex marriage). I was encouraged to see former Governor Christine Whitman’s op-ed piece in the Sunday, November 29, 2009 Star-Ledger supporting same-sex marriage, I hope you read her article and will seriously consider her suggestion.

You have met me and my partner of nearly 30 years, Marc, on more than one occasion at various political gatherings. The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. The New jersey Civil Union Review Commission determined that civil unions do not provide the equality the State Constitution mandates.(Please take a few moments and visit www.gardenstateequality.org. which has two short videos that provide sad examples of the failures of the civil union law.)

When I hear someone say that they believe marriage is only between a man and a woman because that’s the way it’s always been, I think of the many “traditions” that deprived people of their civil rights for centuries: prohibitions on interracial marriage, slavery, (which is even provided for in the Bible), segregation, the subservience of women, to name just a few of these “traditions.”

I hope that you consider my request that you re-evaluate your position and, if after viewing the videos, reading Governor Whitman’s letter and thinking again about this issue of civil rights you still oppose same-sex marriage on grounds other than religion I would appreciate it if you you’d explain your position to me. And, if the basis of your opposition is religious, then I suggest that you do what the US Constitution mandates – and that is to maintain a separation between the state and religion.

Surely Chris Christie knew of this.

That led me to ask the obvious question at a press conference Wednesday: Did Christie know how Harris stood on Lewis v. Harris?

Christie said of Harris and his other nominee, Phillip Kwon of Bergen County, “I did not ask them about specific cases.” He pointed to two other cases of concern to conservatives, the Abbott school-funding decisions and the Mount Laurel decisions on affordable housing, and said “to the extent that they’ve taken positions on those issues, they’re going to have to let us know that.”

The governor sure did his due diligence in this important duty, didn’t he?

Of course this brings out the band of merry GOP apologists, such as this commenter at NRO.

Good grief, throwing Christie under the bus ALREADY? He’s not even to the Greyhound station yet.

Is there anyone who in your view IS pure enough to be a Republican president? Talk about making perfection the enemy of the good ….

So now it a sign that you’re some fire-breathing purist to expect a Chief Executive to actually do his research before making critical appointments.  Supreme Court appointments – be they federal or state – have long-lasting impact well beyond the life of a governor.  Judicial appointments are among the three or four most important job functions of any president or governor.  Even if Harris recuses himself from any matters pertaining to gay marriage, it is clear from this email that he is not what you’d call a sparkling originalist.  As such, Chris Christie has failed in this vital aspect.

Unfortunately we have so lowered the bar of expectations that some will just overlook this minor inconvenience.  After all, Governor Soundbite has so many cool Youtube clips of him berating his constituents, and as this entire election season has proven, bluster is a lot more impressive than actual accomplishments.

The Supreme Court, Abortion Jurisprudence, and Pro-Life Politics

Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum. 

Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.

President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it.  Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.

Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:

“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”

In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Continue reading

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