What is love?

Baby, don’t hurt me, but that’s a natural question in the wake of today’s Supreme Court ruling. Or more appropriately, what is marriage?

Same sex marriage advocates are romanticizing the decision as a win for “love.” How silly to believe that something as big as love can be defined or confined by something as small as legal proceedings. Justice Kennedy’s opinion was clear that, because the 14th Amendment preserves equal protection under the law at the state level, all states must recognize the practice. He wrote that marriage was a fundamental right which could not be denied.

What he didn’t write was what a definition of marriage. That seems just a little important, doesn’t it?

It’s the giant gorilla no one talks about: Much of the vitriol in the same sex marriage debate stems from an unspoken disagreement over the definition of a marriage. If you believe a marriage is a pairing of biologically complimentary individuals intent on procreating, you might see a same sex union as pointless. Sure, the participants might offer each other emotional support and companionship, but the very root need for a marriage doesn’t exist. (This point of view was summed up nicely by the priest in Spaceballs: “I’m trying to conduct a marriage here, which has nothing to do with love.”)

Conversely, if you believe that marriage is a committment based solely on love, you don’t see a reason (other than bigotry) why someone would oppose same sex marriage. Each side would be well served to assume better of the other.

Kennedy wrote that pairings should not be limited – that the fundamental right to be with the person you love shouldn’t be confined to heterosexuals. Fair enough. But it is fair to ask, why stop at a pairing? Two is an arbitrary number when biological considerations are brushed aside. Why couldn’t polygamists marry all the consenting adults they’d like to marry? Why do we recognize marriages at all?

There may very well be answers to these questions, but Kennedy didn’t spell them out. If marriage (or any other protected institution, status, or practice) is a nebulous concept, government cannot do its job, which is to guarantee citizens equal protection under the law. So while this week’s opinion may have been a short-term victory for same sex marriage advocates, it’s tough to say what exactly they won.

Trying to burn Phoenix

Two guys who got rich when people lost their homes are telling anyone who will listen about the possible insolvency of for-profit education.  Steve Eisman and Manuel Asensio point to the fact that colleges like the University of Phoenix rely heavily on student loans, thus inflating their revenues and stock prices.

It seems like a straight business argument – that a market financed by personal debt would go the same route as housing and auto sales did in the last few years.  But flipping through Eisman’s presentation on the issue tells otherwise.  Eisman complains of placement stats  and advertising practices with anecdotal evidence of nurses working as hospital janitors and billboards lining homeless shelters.  His speech reads like a hit piece on for-profit education; Asensio’s organization piled on by asking the Department of Education to investigate the industry’s business practices.

Some of the points are fair, and it deserves the question: why has enrollment in for-profit education jumped so markedly that it necessitates these altruistic crusades from people who profit on falling stocks?   It might have something to do with the fact that a college degree from a traditional school isn’t always all it’s cracked up to be.

This puts the questions about Elena Kagan’s Ivy-league background – and the prospect of an all-Ivy high court – into perspective.  It’s not (as some critics suggest) that she and the rest of the court went to schools that are “elite”; rather that they all went to one of two or three schools.  Whether the schools are Harvard, Yale, and Brown or UMass, UConn, and URI.  We know that the idea of the elite school is a crock – the problem is the lack of diversity of thought.

When Supreme Court nominations stop being polite and start getting real

The Elena Kagan pick has been a perfect, hand-in-glove fit with the criticisms that Washington DC has grown out-of-touch with the rest of the nation.  The prospect of an exclusively Ivy-educated Supreme Court has sparked questions about Eastern corridor elitism.

Of course, not helping was that Senator John Kerry picked a Politico Arena discussion board – ostensibly set up to discuss whether the nominee is too steeped in “Ivy League education and elite positions in government” – to sing Kagan’s praises from their time working together on high stakes tobacco legislation in 1998.

Kagan’s camp could not have asked for a worse messenger with a worse message:

“Massachusetts has been Elena Kagan’s adopted home, but it’s not for such home state boosterism, parochial reasons why I think she’s a terrific choice.

No, it’s because I got to know her well not in Boston, but here in the Senate.”

That’s John Kerry, who connected so poorly with voters in 2004, the poster child for liberal elitism.  And his comments have nothing much to do with the topic: he’s essentially adding his two cents to a discussion about Euros – and helped keep alive the notion that Kagan is an insider pick.

The court looks different from this angle

This morning’s Washington Post Express had the following installment of the excellent comic strip Pearls Before Swine:

And then, by a happy coincidence, the worst-kept secret in Washington DC is confirmed: President Obama will nominate Elena Kagan – who hasn’t been a judge – to be the next Supreme Court Justice.

Despite a different experience than others, having a legal scholar on the bench may allow the court to reach opinions based on legal theory rather than the circumstances presented.  Though given the qualifications President Obama has put forward in the past, don’t hold your breath waiting on it to happen.

Sotomayor and identity politics

The confirmation battle over Sonia Sotomayor is already heating up – but it’s the left that has been turning up the thermostat.

Before any major criticism of Sotomayor can be levied, her proponents are already playing defense – and some are categorically dismissing any naysayers as racists and/or sexistsThe National Organization for Women even announced their campaign to support Sotomayor hours before President Obama announced her nomination.  Democrats and their allies on the left are all but baiting Republicans to launch an all-out war.

While there is planty to criticize Sotomayor about – and those criticisms should be levied – it might actually be tactically smart to allow the confirmation to be affirmed with some window dressing opposition.  Unlike Harriet Miers, President Bush’s failed nominee, Sotomayor will not face opposition from her own party (barring some shocking revelation that likely would have precluded her nomination in the first place). Given the nature of the Senate, her nomination is almost guaranteed – though that fact is not the reason to give Sotomayor a pass.

Remember that Miers’s nomination by Bush was a replacement of Sandra Day O’Connor – and given the identity politics which often surround high court noninees, Bush felt compelled to nominate a woman.  Miers was a disaster, derided by both left and right as an intellectual lightwieght and, more importantly, criticized by conservatives for her lack of strict constructionist bona fides.

Sotomayor is certainly “qualified” to serve on the Supreme Court, but in nominating a Hispanic woman, Obama lessens the pressure on future presidents to look for certain attributes and instead allows them to focus on qualifications. The idea that certain constituencies should be highly visible is an idea that goes back as far as politics and has a long tradition in America – in fact, it’s the reason that a small state (Delaware) was set up to be the first to ratify the Constitution.  And each pick that cecks off those boxes (especially qualified picks like Sotomayor) calm the effect of identity politics that factor into these decisions.   For instance: if in four or eight years, a Republican president has to pick a nominee to replace Ruth Bader Ginsburg, that President will be under less pressure to appoint a woman.  Not that this hypothetical President couldn’t or wouldn’t appoint a woman, but it would be a lesser priority – and anything that strips identity politics from the processes of government is, on some level, a positive thing.

Of course, there’s another cynical reason that a Sotomayor approval might be politically helpful for Republicans.  One or two opinions that reflect the same thinking as her support for New Haven, Connecticut’s racial preferences in doling out (and taking away) promotions for firefighters may serve be an albatross for Obama’s reelection campaign.