Thursday, July 1, 2010

Advise, Consent and Smudge History Makers

OK, I'll admit that I'm not paying terribly close attention to the Senate confirmation hearings of Elena Kagan. I probably should. Before another his first term has ended, President Obama may have the occasion to nominate still another Supreme Court justice, so each nominee is of historical import. For that reason alone, each vacancy represents a significant change in the direction of the Court. Kagan will be nominated. As should virtually any nominee of any president (although, I can think of a couple of notable exceptions which were fortunately derailed).
Still what is interesting regarding these hearings are not the answers Ms. Kagan gives to her inquirers. They will be processed moderate answers to processed conservative ideological questions.
But it is interesting to ponder to what degree the line of inquiry in Ms. Kagan's instance represents a willingness to treat with less respect than is usually accorded another historic figure who sat on the Supreme Court: Thurgood Marshall.
Kagan clerked for Marshall, the quintessential liberal jurist whose place is forever fixed as the first African-American to sit on the Supreme Court. The price of questioning or invalidating Elena Kagan's qualifications to be a Supreme Court justice, seems to be a scorching of the effigy of Marshall's image for the sake of scoring political points.
It's one of those unfortunate things that go along with politics these days - the inauthentic argument in order to demonstrate an ideological purity which in more substantive times would have been treated with courtly disdain.
There was only one Thurgood Marshall. Elena Kagan has nothing in her past that suggest that she's a Marshall starter kit. What we do have is slight evidence that she will be a different kind of Supreme Court justice; one whose judicial temperament may actually balance this Court. In the meantime, the confirmation process will be traditionally predictable.
And Kagan's nomination will be confirmed...
"The GOP hit points against Kagan can practically be recited while asleep. She's too activist, too far out liberal, too pro victim's rights, affirmative action, civil liberties, and for the more rabid, a closet identity politics enthusiast. GOP senators will selectively pluck a line here, a thought there from Kagan's youthful writings in law journals, comments she made when she clerked for Supreme Court Justice Thurgood Marshall, briefs and opinions submitted while deputy counsel for Clinton and solicitor general for Obama. They'll cite her "not sympathetic" opinion regarding the constitutional challenge to Washington D.C.'s gun-control law. She later reversed gear on her opinion. They'll jump on her line about male jurists "As men and as participants in American life, judges will have opinions, prejudices, and values." They'll endlessly cite her excluding of military recruiters when she was Dean of Harvard Law School. The policy was solely in keeping with Harvard's policy of not allowing military recruiters on campus in protest to the military's don't ask, don't tell policy. They'll cobble together a few more of her spare, out of context, quips to paint a damning picture of Kagan as a liberal, activist."

"Given the high stakes, the intense media and public scrutiny she's gotten and will continue to get, and the hard pounding from the right, the great fear is that Kagan could massage or even retreat from her moderate views on law and politics during the hearings. She'll do what's required of all nominees, say the right things, and generally come off as a reasoned pick. But then that's really incidental to the point of the GOP exercise with her. McConnell and company are not really concerned with derailing her confirmation."

"Their goal remains to bully, cow, and badger her to insure that she toes the line not solely before the panel, but on the bench. The GOP hit plan is to send a firm message to the Obama administration that conservative politics and judicial and legal philosophy remain a potent force in court decisions on issues of race, gender, the environment, consumer, and civil liberties and criminal justice issues that Kagan and future justices will decide."

"The GOP attackers also are determined to use Kagan as their foil in their fierce and on-going battle to influence public opinion. The instant Obama announced Kagan as his court pick, the massive effort to tar and brand her as a race-biased, judicial activist kicked into high gear."

"Kagan clerked for Thurgood Marshall. The connection between the two was continually played up. Marshall was the court's consummate liberal, activist judge, and made no apologies for it. The aim was to hang the guilt by association tag of activist in the waiting judge on her. Kagan takes great pride in her work with and mentoring by Marshall. But she is not Marshall."
Read the rest of this article here.


Anonymous said...

Rev, you might be having a bad head day with your comment ""Their goal remains to bully, cow, and badger her to insure that she toes the line not solely before the panel, but on the bench. "
Once she is confirmed (and everyone knows she will be), she is autonomous - she knows it and the GOP knows it, so your comment is off mark.
Also what happened to my request for a eulogy for that great Democrat statesman and civil rights leader Robert Byrd? Hopefully you have taken it under advisement.

Gerald Britt said...

Anon 9:51,

The sentence is not mine. However, I do believe that there is a strategic initiative to try and goad nominees into saying something 'honest' in an effort to raise hackles. Nominees generally stay on point when it comes to these hearings, but ultimately any administration's objective is for the nominee not to 'Bork' themselves or ruin the chances of future nominees. There's a corruption of the whole process, to be honest.

As for Byrd, I haven't had a chance to respond to the request but stay tuned...

Chris said...

The great civil rights leader, Robert Byrd?? Wasn't he a member of the KKK?

Chris said...

Oh sorry, anomy-- I get it now!

Gerald Britt said...

Chris, Chris! You're not implying that Anon 9:51 is being less than genuine are you?!

Anonymous said...

Gerald, Kagan wouldn't admit she wrote a certain memo, finally said it WAS in her handwriting. Does that give you pause?u