Elena Kagan, President Obama’s nominee for the Supreme Court, will be easily confirmed. Her views on partial birth abortion, gun control (she had compared the NRA to the KKK), and military recruitment at Harvard Law School when she was Dean, will all be mentioned on the Senate floor.
Sen. Jeff Sessions (R-AL) will once again bring up her undergraduate thesis at Princeton University. It was entitled To the Final Conflict: Socialism in New York City, 1900-1933, and Kagan lamented the decline of socialism as “sad” for those who still hope to “change America.” She asked why the “greatness” of socialism was not reemerging as a major political force.
There are many other excellent points to be raised against the Kagan nomination, but none of this will stop her. Even Sen. John Cornyn (R-TX) is referring to her as “soon-to-be Justice Kagan.” The hearings which are now being held by the Senate Judiciary Committee will definitely not derail her nomination, but they are nevertheless revealing.
Her 1995 law review article had referred to Senate hearings on past nominees as “a vapid and hollow charade.” The first round of Kagan questionning is over, and Sen. Al Franken (D-MN) was especially brief. Last year the penetrating questions he posed to Supreme Court nominee Sonia Sotomayor concerned the old “Perry Mason” TV series.
Kagan told Sen. Arlen Specter (D-PA) that she favors televising Supreme Court sessions, and conceded: “It means I’d have to get my hair done more often.” Kagan has spent only two years in private practice.
According to the Congressional Research Service, Supreme Court nominees without prior judicial experience had spent an average of 20.5 years in private practice.
Justices in this category include Byron White (14 years of private practice); William Rehnquist (16 years); Robert Jackson (21 years); Louis Brandeis (38 years) and Lewis Powell (39 years). Three weeks ago Sen. Amy Klobucher (D-MN) said this lack of private practice experience was a mistake, but she has now changed her mind:
If we just put judges on the court that have handled no difficult cases, that haven’t been in the arena, or people who have never been judges before and so they didn’t have those difficult decisions, I don’t think we’d have a strong judiciary.
Most Senate Democrats are now demonstrating a double standard and they are reversing positions they previously held when Republican nominees were being considered by the Judiciary Committee. An exception is Sen. Herb Kohl (D-WI) who told Kagan:
We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us. We don’t have a right to know in advance how you will decide cases, but we do have a right to understand your judicial philosophy and what you think about fundamental issues that will come before the court.
As you said in your own critique of these hearings in 1995, it is ‘an embarrassment that senators do not insist that a nominee reveal what kind of justice she would make by disclosing her views on important legal issues.’ The president has his vetting process and we in the senate have our vetting process, but this hearing is the only opportunity for the American public to learn who you are. They deserve to learn about your views and motivations before you dawn the black robes of a justice for a lifetime appointment.
Kagan is intensely partisan and describe herself as “generally progressive.” When then Rep. Elizabeth Holtzman (D-NY) was defeated by Al D’Amato in 1980 for a U.S. Senate seat, Kagan cried. She later wrote:
I worked for Liz Holtzman last summer — some 14 hours a day, six days a week. So that night I was at the Brooklyn Academy of Music, attending what I was fairly certain was going to be a celebration. . . when Holtzman lost I thought the world had gone mad, that liberalism was dead.
In 1995 and 1996 she was the Deputy Assistant to President Clinton for Domestic Policy. In a review of her e-mails from that period, the AP says Kagan “had to put political considerations above policy views.” Kagan was also in the opposition research department of the 1988 presidential campaign of Gov. Michael Dukakis (D-MA).
Senate Democrats had previously said such experience “Is about prying into personal lives of other candidates in order to try to dig up dirt on them. A more partisan choice could not have been made.” The difference is that they were talking about the 2007 nomination of Tim Griffin to be the U.S. Attorney for eastern Arkansas. At that time they said:
Senator Sheldon Whitehouse (D-RI) said: “As those of us who have been through this sort of thing know, ‘research director’ is not about looking up old statutes; it is about prying into personal lives of other candidates in order to try to dig up dirt on them. A more partisan choice could not have been made . . . It is just hard to believe that Tim Griffin was the best person possible, at least not as we ordinarily define those terms.”
Sen. Patrick Leahy (D-VT): “This was not a vacancy created by necessity or emergency. This was a vacancy created by choice to advance a political crony.”
Sen. Dianne Feinstein (D-CA): “Senators Pryor and Lincoln have raised significant concerns about how … The administration appointed their top lawyer in charge of political opposition research, Tim Griffin. I have been told Mr. Griffin is quite young, 37, and Senators Pryor and Lincoln have expressed concerns about press reports that have indicated Mr. Griffin has been a political operative for the RNC.”