Tuesday, May 11, 2010

Elena Kagan


President Obama yesterday nominated Solicitor General Elena Kagan to the Supreme Court opening created by the retirement of Justice John Paul Stevens. In announcing Kagan's nomination, Obama said:
Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament -- her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder. 
Said Kagan:
I have felt blessed to represent the United States before the Supreme Court, to walk into the highest Court in this country when it is deciding its most important cases, cases that have an impact on so many people’s lives.  And to represent the United States there is the most thrilling and the most humbling task a lawyer can perform.
The Solicitor General served as Dean of the Harvard Law School, Professor of Law at both Harvard and the University of Chicago, and Associate White House Counsel under Bill Clinton. She also clerked for Supreme Court Justice Thurgood Marshall.

The initial Republican opposition to Kagan is typically crass. It augments a whispering campaign about her sexuality with implied support for gay marriage and the implication that opposition to military recruiting at Harvard has something to do with her supposed lesbianism. (Harvard objected to campus recruiting on the basis the the Don't Ask/Don't Tell policy conflicted with an institutional commitment that barred discrimination on the basis of sexuality.)

In a convoluted and nearly incomprehensible argument, neocon gay blogger Andrew Sullivan tries to have it both ways. He appears to argue that, while Kagan's sexuality is irrelevant, senators ought to grill her on it anyway in the hopes of luring her out of a closet she may not be in, which would somehow be a victory for all concerned. And in any case, we had better be certain that if she is gay, it won't affect her decisions.

Does Sullivan think that a heterosexual judge would be predisposed to an anti-gay vote in a gay rights case? If the Senate questions a Supreme Court nominee based on the notion that there's something dark and hidden about an unmarried, 50-year old career woman, shouldn't that be standard for every nominee to any position? And is the broad category of gay or straight enough? Shouldn't they ask about habits (faithful or not, degree of promiscuity either way) and predilections? Any porn addiction (I guess that one has been covered, and it's o.k.)? What web sites is the nominee a member of or has ever been a member of? What web sites has the nominee even looked at? How old was he or she the first time they, you know? How often did they do it? How regularly did he or she have sex in college and law school? (If the content of school papers are fair game, why not sex lives?) Will he or she supply the names of each sexual partner they've ever had? Naturally, he or she should make public the results of AIDS/STD tests.

Another nagging worry, according to one comment, is whether her (presumed) homosexuality affects her judgment because -- and I kid you not -- "passion clouds reason." Now, no one would ever raise this issue in connection with a straight nominee, although perhaps they should: I speak as someone whose judgment has been clouded by rampant heterosexuality more than once.

Or, we could just not care ask and about something important.

The other Republican line of attack concerns a speech in which Kagan expressed sympathy for Thurgood Marshall's contention that the Constitution as originally conceived was "defective." The first African-American justice, Marshall, in a 1987 speech observing the bicentennial of the Constitution, inexplicably took issue with its Three-Fifths Compromise before articulating the classic liberal understanding of the law of the land:
We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making...
(The complete text of Marshall's marvelous speech is here.) If the thrust of the conservative attack on Kagan is to be sordid insinuations about her personal life and comparisons to Thurgood Marshall, then I say bring it on: It ennobles her and abases them.

Progressive reservations about Kagan appear to be little more than cherry picking. In an uncharacteristically flabby report for The Nation, John Nichols asserts that
[The national] conversation should begin with an honest admission that Kagan's record does not suggest that she will be as great, or as liberal, as Stevens.
The problem with this claim is obvious: When Gerald Ford nominated John Stevens, nothing about his record that he would become either liberal or great. So how can anyone make such a prediction about Kagan?

Nichols then takes a long time to get around to his next point, which has to do with doubts that Kagan will oppose Bush-like encroachments of executive power on the legislative branch. But literally every president in the history of the country has sought a free hand when conducting a war. The notion that because Solicitor-General Kagan argued for Barack Obama when he wanted to retain a couple of Bush war powers means that he and she envision a Bush/Cheney imperial presidency is ludicrous. Certainly, senators should question Kagan on her views of the separation of powers; they should question every nominee for the federal bench on that subject. But to start from the perspective that she's a closet monarchist seems out of line.

Nichols also quotes approvingly an assault on the supposed "paucity" of Kagan's legal scholarship. I'm not remotely qualified to render an informed opinion, but I do wonder how someone could attain Kagan's academic credentials without being a decent scholar. More to the point, I'd like someone to produce the study that correlates legal scholarship with excellence on the Supreme Court bench.

Finally, Nichols gives the back of his hand to "...the talk about social and even economic issues that may come before the court." Maybe these issues are not important to him, but they will be to rest of us: During Kagan's tenure the court may well review continued attempts to undermine Roe v. Wade, the new health care law, and suits brought to break up the banking and finance trusts that plague our economy and threaten our way of life.

The consensus appears to be that she'll move the court to the right because she can't possibly be as liberal as Stevens. That's unknown. But nothing about Elena Kagan's career suggests that she'll suddenly make common cause with John Roberts. You don't have to be John Paul Stevens to stand in opposition to Robertsism. It's Roberts and Samuel Alito and Clarence Thomas and Antonin Scalia who have moved the court to the right; it's them we must resist...

JUST A SONG: When I saw those thrashers rolling by...

The butler did it...and did it...and did it...

French Quarter gardenia...

Deepwater Horizon survivor tells his story...

I'm nothing special, in fact I'm a bit of a bore...

A recovering Catholic returns to church for the first time in thirty years...

Premium T.'s Tuesday Poem...

Robert Frost's Banjo has the "Rainy Day Blues" on his new Gold Tone Paul Beard resophonic guitar...

Jim Wallis attempts to open a dialog with Glenn Beck, who prefers to cower in the safety of his studio (thanks, Darlene)... 

School art...

R. I. P., Lena Horne:

10 comments:

nursemyra said...

the photo at the gardenia link is lovely

gregj said...

Another chance for politicians to show what idiots they are.
The constitution was defective. Women did not have rights, blacks were not counted as whites were. It allowed slavery. It led to the mess that is Wash, DC today.
It's good, maybe even great, but not perfect.
I took an oath to defend it against all enemies foreign and domestic. I wonder that the most formidable enemies of the constitution are really the people who twist it for their own purpose, the very people who have 'led' our country.

Roy said...

People are also making a fuss over the fact that Kagan has never been a judge. Which is ridiculous, given SCOTUS's reputation as a place where old politicians go to retire. If you go read the roster of Chief and Associate Justices, prior seating on a judicial bench is actually a rarity.

Oooh! Love John's new guitar!

Steven said...

In my travels, I have read that the 'weight' of the candidate might be an issue as well. Is there no end to this foolishness?

Ima Wizer said...

I think Republicans well represent "foolishness" in every possible way. I have to wonder WHY anyone would be so impotent as to be one!

K. said...

NM: I think CK may have created a NOLA fan Down Under! You wouldn't be the first.

Greg: What gets me is how they simultaneously invoke the Constitution's perfection and call to amend it.

Roy: Not that I expect Kagan to be another Earl Warren, but he wasn't a judge. Again, someone should make a demonstrable connection between excellence and judicial experience before getting hot and bothered about this.

Steven: What, Antonin Scalia is svelte? No one would ever raise this point about a male nominee.

Ima: Hmmm...I wonder if there's a causal link between the words "impotent" and "Republican."

K. said...

Alabama Republican Senator Jeff Sessions has complained about Kagan's lack of judicial experience. Until he became senator in 1996, Sessions had never held elective office as a representative.

tnlib said...

A Huff Post article yesterday reported that 40 0f 111 Justices had not had prior bench experience.

This is a good article. I'm not surprised at anything the Republicans do or say about anything Obama says or does. But I am more than a little surprised at
my fellow Democrats, who are, imo, becoming just as negative as the GOP. Let's give ourselves some time to learn more about her before jerking our knees into the off position.

K. said...

Until someone can correlate judicial experience with Supreme Court excellence, the experience argument is a crock. In the entire history of the Supreme Court, there have been two great Chief Justices: John Marshall and Earl Warren. Neither had served a day on any bench anywhere when nominated to the court.

Roy said...

Neither had Charles Evans Hughes, a conservative icon and probably the most conservative (by contemporary standards) Chief Justice. Prior to his nomination to the Court, he had been Governor of New York and Warren Harding's Secretary of State. Nope, no robes there, either.