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The Kagan Debate: What It Is And What It Is Not

[The President] shall have Power, by and with the Advice and Consent of the Senate, [. . .] to [. . .] appoint [. . .] Judges of the supreme Court - Article II, Section 2 of the Constitution

When discussing President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, I think it is important that we understand the process and what stage we are at. Many people are just joining the discussion now, after President Obama nominated Kagan. But the discussion began soon after Justice John Paul Stevens announced his retirement. That discussion centered upon who Obama should pick. Many, including myself, hoped Obama would choose a committed progressive voice with a clear record. For some of us, Pam Karlan would have been the dream pick. Judge Diane Wood, who appeared on the reported short lists, was the preferred short listed candidate amongst most progressives.

The President, exercising his constitutional power, chose instead to nominate Kagan. While discussions continue to rage as to why Obama preferred Kagan to Wood, from a Constitutional perspective, the issue now becomes the role of the Senate exercising its Advice and Consent power. It is my view that the Senate, in the exercise of its constitutional duties, must deeply explore the legal views of the nominee before "consenting" to the President's choice. More . . .

My view regarding the Senate's role is far from universal. I daresay it is the distinct minority view. But I continue to advocate for it. For me, one of the most important issues regarding the Kagan nomination is the issue of the Senate's role in the selection of a Supreme Court justice. I categorically reject the idea that the Senate should be a rubberstamp for the President. Accordingly, I would expect significant Republican opposition to the choice of a Democratic President.

But neither should Democratic Senators be a rubberstamp to a Democratic President. This is especially so when it comes to a nominee like Elena Kagan, whose views on many, if not most, of the legal issues of the day are not publically known. But this process does not entail a continuation of the discussion of who the President should have picked. The question now is whether the person the President DID pick deserves Senate confirmation to sit on the Supreme Court.

This has little to do with the notion of being "qualified." Like John Roberts and Samuel Alito before her, Elena Kagan is clearly qualified. But are her legal views acceptable to the Senate? In 2005, I urged a No vote on John Roberts. In particular I embraced the manner that the NYTimes Editorial Board presented the argument:

Few lawyers in America can compete with Mr. Roberts in professional accomplishments. [. . .] If the test were legal skill alone, Mr. Roberts would certainly pass. But the Senate and the American people have a right to know whether he would use his abilities to defend core rights and liberties, or to narrow them.

It has been difficult for senators to extricate his views. During his brief term as a judge, he has written few notable opinions. The White House has refused to release the memorandums he wrote in the solicitor general's office, which could have been revealing. Memos from earlier in his career raise red flags on issues like civil rights, women's rights and the right to privacy - which he dismissed, at one point, as the "so-called 'right to privacy.' "

[. . .] Given these concerns about his record, Mr. Roberts needed to use the hearings to reassure the American people in a substantive way that he would be a vigilant guardian of their rights. [. . .] Over days of testimony, he dodged and weaved around many other critical legal issues. On abortion, church-state separation, gay rights and the right of illegal immigrants' children to attend public school - all currently recognized by the court - he asks to be accepted on faith. That just isn't good enough. The Constitution says that senators must give their "advice and consent" to Supreme Court nominees. To do that in a meaningful way in the case of Mr. Roberts, they need information that has been withheld from them.

[. . .] Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.

(Emphasis supplied.) Elena Kagan carries the same burden in my view. The process is no longer about who President Obama should have chosen. It is about who he has chosen and whether that person can meet the burden of earning the consent of the Senate to her being seated on the Supreme Court.

Speaking for me only

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  • Display: Sort:
    Your "distinct minority view" (5.00 / 1) (#1)
    by andgarden on Wed May 12, 2010 at 08:20:53 AM EST
    comports exactly with the one expressed by Kagan herself in 1995.

    FWIW. . .

    Which I would (none / 0) (#4)
    by CoralGables on Wed May 12, 2010 at 08:59:05 AM EST
    likely disagree with.

    Although that train long ago left the station, I don't like the politicizing of the Supreme Court.

    Wanting to now how a judge or a potential judge might rule on a case that they haven't heard is more politics than anything else. And not knowing how someone might change over the course of time, especially as a lifetime appointment, is why we have nine and not one.

    It might be of a superior interest to those with an agenda how someone would rule in advance, but if that were the case we would never need court trials or hearings. Let them make the call without so much as putting on their robes.

    In reality it comes down to whether or not they are qualified for the position. How they might rule over a lifetime is a crapshoot (e.g. John Paul Stevens). We can only hope that over the course of their tenure they follow and perform their duty on the Court admirably and fairly (e.g. John Paul Stevens).

    Parent

    The Court is inherently political (5.00 / 1) (#6)
    by andgarden on Wed May 12, 2010 at 09:22:12 AM EST
    Indeed, it's more important to know about the politics of a Court nominee than any Congressman or Senator.

    Parent
    Do you really think Kagan will be (5.00 / 2) (#2)
    by observed on Wed May 12, 2010 at 08:33:36 AM EST
    filibustered if she actually expresses her views??
    Republican power is at a nadir. Many of them already support her. Maybe her nomination is the perfect opportunity to change the nature of confirmation hearings.

    Frankly (4.67 / 3) (#3)
    by Big Tent Democrat on Wed May 12, 2010 at 08:54:33 AM EST
    That is my hope.

    Tome there is no doubt Kagan will be confirmed. What is in doubt is the manner in which the Senate acquits its responsibilities.

    Parent

    And she has a responsibility (5.00 / 1) (#7)
    by Cream City on Wed May 12, 2010 at 09:36:40 AM EST
    if she still holds to that view.  She has a responsibility to act upon it -- and so she could seize the moment, when she probably is a shoo-in, anyway, to try to turn around this awful tide in Supreme Court nominations in recent times.  

    If this is not the time, the nomination, to do so, when?  When again will a Dem president be elected with such a mandate?  Not in the foreseeable future -- and so it also has to be before the midterms.

    Parent

    If she is a good lawyer (none / 0) (#8)
    by jbindc on Wed May 12, 2010 at 09:48:13 AM EST
    And I assume she is, given the job she's interviewing for, she is not going to volunteer any information.  Never answer a question that isn't asked, and if no one asks, then why would she give up that information?

    Parent
    "Good lawyer" not a safe assumption (none / 0) (#9)
    by gondobie on Wed May 12, 2010 at 09:54:42 AM EST
    SG Kagan has almost no experience at all as an actual lawyer.  Anecdotal reports from her brief tenure as SG suggest that the Court was less than impressed with her lawyering.  The vast majority of my law school profs would not have been able to argue a simple FED or municipal ordinance violation case in actual court; maybe the same holds true for her.

    Parent
    You do understand (none / 0) (#11)
    by jbindc on Wed May 12, 2010 at 11:10:30 AM EST
    That a large majority of lawyers don't go to court, right?  Which does notmean they are incapable of making good arguments or understanding the law.

    Parent
    Although rumor has it she was unaware (5.00 / 1) (#13)
    by oculus on Wed May 12, 2010 at 11:35:27 AM EST
    at oral argument of an important line of First Amendment cases.  And she was arguing a First Amendment case.  Poor preparation.

    Parent
    Are the hearings set? (none / 0) (#5)
    by jbindc on Wed May 12, 2010 at 09:02:53 AM EST
    The calendar is short - it is an election year.  No one wants a big fight over a nominee who is pretty much a shoo-in.  That's wasted energy and resources.  I think you'll hear the few weak points put out by the Republicans, just so it doesn'took like they are just rolling over.  I don't see any Dems really fighting this and predict they will do just what BTD fears - rubber stamp the choice.

    Parent
    Agree re the Dems on Senate Judiciary (none / 0) (#12)
    by oculus on Wed May 12, 2010 at 11:33:47 AM EST
    Comm.  But the Republicans?  Will they pass up the opportunity to posture b/4 the cameras?  Doubt it.

    Parent
    I do not know (none / 0) (#10)
    by Maryb2004 on Wed May 12, 2010 at 11:04:23 AM EST
    whether I (if I were a Senator) would vote against someone simply because she failed to answer all the questions.  It would depend on the circumstances.  The process isn't only the nominee's testimony, it includes review of her writings and testimony of other people.  So assuming (I think correctly) that the burden is on the nominee to show that she has the qualities to be a justice, the burden doesn't need to be met ONLY by testimony.


    Well, in this case (5.00 / 2) (#15)
    by Emma on Wed May 12, 2010 at 12:14:35 PM EST
    the fact is that her testimony will the largest portion of her record.  She doesn't have much writing and, frankly, I'm a bit perturbed by the type of third-party testimony that has, thus far, been provided:  "I don't know what she actually thinks about any issue, but she's really, really smart!"

    The paucity of her record, both in volume and substance, is exactly why her testimony before Congress has such importance.

    Parent

    If liberals could join with conservatives (none / 0) (#14)
    by MKS on Wed May 12, 2010 at 11:42:48 AM EST
    in tossing Kagan over the side, would we get Wood then?  Or would it be Garland?

    How do we get to Karlan or Koh?

    In my opinion, Obama would not (5.00 / 1) (#16)
    by Anne on Wed May 12, 2010 at 02:40:09 PM EST
    listen to the liberal side of the objections, but the conservative side, and so would never consider nominating someone demonstrably more liberal than Kagan - assuming Kagan is even an inch left of center to begin with; I think a Kagan withdrawal would see Obama taking another step to the right and nominating Garland...or Sunstein.

    He's done this on issue after issue - "the left" was screaming at him on health care, and he ignored us - which tells me - I think - that his natural comfort level is on the conservative side, and that's why it's easier for him to go in that direction.

    I am resigned to the fact that the only thing about liberals that matters to Obama is whether he can get money from them.

    Parent

    After Kagan? (none / 0) (#17)
    by norris morris on Wed May 12, 2010 at 03:02:28 PM EST
    Obama would have to move further to the right as his behavior indicates, and also re: the sheer politics of it all.

    Kagan should get his support and she most probably will be able to create consensus as her background suggests.

    Stevens? I believe he was entirely unique and gifted. Only Woods and a few others would be strongly opposed [election year]and Obama would have to move backward.

    Parent