Sunday, May 16, 2010


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Anytime someone is nominated for the U.S. Supreme Court, it raises serious and important questions.

 These questions are then routinely ignored in favor of ridiculous posturing and idiotic statements.

The recent nomination of Solicitor General Elena Kagan is no exception, and the hyperbole, hype and hysteria come from both the left and the right.

RNC Chairman Michael Steele led off the clown parade by going after Kagan for quoting a speech by her former boss, legendary Justice Thurgood Marshall. Marshall said, in the speech quoted by Kagan, that the U.S. Constitution, as originally written, was "defective." Considering that the original Constitution regarded people like Marshall (and Steele, for that matter) as property who only counted as three-fifths of a person, one might concede that he had a point. That is, after all, why we have an amendment process.

Steele, however, thought this was cause for suspicion. He sent out a press release saying that senators needed to raise "serious and tough" questions about Kagan's philosophy as a result of the statement. Which leads us to ask questions of our own, such as: When did Michael Steele become such a fan of constitutional provisions that allowed slavery?

Then there were the questions raised about Kagan's lack of judicial experience. It is true, she has never occupied the bench. But then again, neither did some famous justices, including former Chief Justice (and conservative hero) William Rehnquist and the above-referenced Marshall. But ranking Republican Judiciary Committee member Jeff Sessions called Kagan's lack of bench time "troubling."

He didn't see it as a problem, however, for Bush crony Harriet Miers when she was being -considered for SCOTUS. "It is not necessary that she have previous experience as a judge in order to serve on the Supreme Court," Sessions said of Miers.

Speaking of Miers, one of the sillier slams on Kagan came from liberal blogger Glenn Greenwald.

Greenwald not only compared Kagan to Miers, but he also insisted that Kagan - the former law clerk to Thurgood Marshall, a woman who worked for Michael Dukakis' campaign, a woman who, along with other law school deans, sent a blistering letter to the Senate Judiciary Committee blasting George Dubbya Bush's expansive view of executive power - would actually move the court to the right. This is, to say the least, overstating matters. It is, to say the most, insane.

But for truly epic silliness, one can always reliably turn to the wingnuts over at The National Review Online. NRO's Ed Whelan slammed Kagan for being, of all things, a bad driver. Kagan, wrote Whelan, is "such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John's University, it is a skill she has not yet mastered."

Perhaps from now on, we can expect the Senate Judiciary Committee to troop out to the parking lot to see if SCOTUS nominees can show their red-blooded American-ness by demonstrating their mastery of the three-point turn.

But, you may say, what do you, Dusty Rhoades, think about Kagan? Well, I've looked her over about as well as you can by reading, and the word from me is: Meh.

OK, she's made the right enemies (see above), and I don't think she's going to turn into Clarence Thomas Jr., as some of my liberal brethren seem to fear. But I don't think she's going to be a real catalyst for change on the court, either.

The thing I've heard most about her is that she's a "consensus builder." That's fine, and it's probably why Obama likes her. But it's really more the talent one would look for in the chief justice, and unless Chief Justice Roberts has a sudden decline in health or gets abducted by aliens, that's not happening.

What the court needs now is a solid and clear liberal voice to balance the increasingly conservative and authoritarian bent it's taken the past few years. I'm always willing to be surprised, but I don't see Kagan doing that. She will almost certainly be confirmed, after the usual confirmation showboating (which Kagan herself once called "a vapid and hollow charade").

I'm not going to rend my garment and sit in the ashes if she does. But President Obama could have done better.

1 comment:

Mark Terry said...

Call my politics cynical perhaps (why not, they often are), but over the last dozen or so years the presidents' first nominees for SCOTUS have all seemed rather meh, to my mind (at least a little bit, because I hope it ain't so) as if they figure the opposing party's going to really go after the president's first nominee, so they put up someone they won't mind NOT getting approved, with Plan B being someone they really want. That's probably rather circular thinking, and although I think Kagan's okay, I'm no more blown away by her than I was by Sotomayor, Meier,Ginsburg, Bork, or Clarence Thomas, for that matter.