Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Monday, May 10, 2010

The Kagan announcement: Is anyone really surprised by this?

I ask that question because since the speculation about who Barry might choose, Elena Kagan has been at the top of the list. (Never once did we think Janet Incompetano would be his pick because, well, she's literally incompetent, folks.) And this morning, Barry didn't surprise anyone by naming her as his choice to replace Justice Stevens:

President Barack Obama nominated Solicitor General Elena Kagan to the Supreme Court on Monday, declaring the former Harvard Law School dean "one of the nation's foremost legal minds." She would be the court's youngest justice and give it three female members for the first time.

The nomination to replace liberal retiring Justice John Paul Stevens set the stage for a potentially bruising confirmation battle, though mathematically Democrats should be able to prevail in the end.

At 50, Kagan is relatively young for the lifetime post and could help shape the high court's decisions for decades. If confirmed by the Senate, she would become only the fourth female justice in history.

Now the question that arises is "Is she qualified?" Ed Whelan at NRO's Bench Memos blog gives us an answer to that question:

1. I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill. But …

2. Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has
only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.

3. There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick. Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years—from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee—would seem to reflect what writer Christopher Caldwell
describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America. In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy—and of her unfathomable remoteness from ordinary Americans.

4. Kagan’s record thus manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the broader benefits of judicial experience.

5. Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has
written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.” In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

6. Kagan has
argued that the Senate should carefully explore a nominee's views on judicial philosophy generally and on hotly contested constitutional issues in particular. Her argument has special force for someone who has been so guarded about her own views. Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal: as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is dutybound to defend.

7. Kagan
shows signs of moderation on issues of presidential power and national security. But there’s no basis for hopes that she might secretly harbor conservative legal views on other matters.

8. Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking. It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.

In other words, she has little in legal writing (strange for a former Dean of Harvard Law), and she generally holds liberal views regarding the Constitution and how to interpret it. So it's easy to assume that Barry is replacing a liberal with another liberal. However, as SCOTUS Reports notes there should be a good deal of concern regarding Ms. Kagan:

Rick Garnett, professor of law and associate dean of University of Notre Dame Law School, and former law clerk for Chief Justice Rehnquist: “Elections matter, and the election of President Obama has turned out to matter a great deal for the future decisions and direction of Supreme Court. With the nomination of Solicitor General Kagan, the President has taken a significant step toward reshaping the Court and its work for generations. No one should think that this nomination is inconsequential, or that it changes little because it involves merely replacing one liberal justice with another. A conservative might someday win back the White House, but any future Republican president will be playing defense with his or her Supreme Court selections. With his second Supreme Court pick — and, to be clear, he will almost certainly have more — the President is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely.”

David McIntosh, co-founder of the Federalist Society and former congressman from Indiana: I’m deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering. Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory.

Tom Goldstein at SCOTUS Blog offers up even more insights to Ms. Kagan that seasoned court-watchers should take note of:

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail – note the contrast with the nearly two decades of decisions by Sonia Sotomayor – means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same Committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the Committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.

Also important will be the speed with which the Administration produces documents – not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton Administration. A genuine fight over materials could lead to a delay.

Michelle Malkin has a round-up of links about this nomination, and she takes notice of this comment via Twitter: “I love it when the most transparent administration ever picks a nominee because they don’t have much of a paper trail.”

Snarkiness aside, the guy's got a point. Barry has presented a nominee that has less of a paper trail that I do, and I have plenty of friends that tell me I'd be the Constitution's best friend if I were on the high court. (I think it has a lot to do with the fact that I am an originalist, and have probably far more about the Constitution, and the jurisprudence surrounding it, than most of the nominees nominated by liberal/Democrat presidents.)

He chose her because she is so much like her boss as Captain Ed notes in his post announcing her this morning:

While Kagan may be the least objectionable of Obama’s potential appointees, the truth is that she’s a lot like Obama — an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV. Republicans who oppose Kagan should focus on those shortcomings.

So, we have a nominee with little experience, and one who didn't exactly impress her soon-to-be-colleagues on the high court. Why do I say that? Does anyone really think that something will prevent her elevation to the Supreme Court? She will win confirmation unless some little nugget of dirt is dug up that could ultimately derail this nomination. And if any nugget comes up, it'd better be something akin to Abe Fortas's ongoing problems that led to the first-ever filibuster of a Supreme Court nominee, and his eventual resignation in disgrace. (Of course, there is the Goldman Sachs connection, mentioned in the news report at the beginning of this post, that could serve as fodder for the Judiciary Committee, but I sincerely doubt that's going to bounce her from the nomination.)

For more on Ms. Kagan, I suggest the following:

Ann Althouse

C-Span showing her arguments before the Supreme Court

(For the above, a hat-tip to Glenn Reynolds.)

Carol Platt Liebau and a hat-tip to Hugh Hewitt for that, and he has a couple of posts about Ms. Kagan, as well. Make no mistake he'll be talking about her tonight. Tune in 6-9 PM EST, or tune in to KRLA at 3 PM California time.

Ed Whelan at Bench Memos has plenty on her, with lots of links.

Paul Mirengoff and Scott Johnson have some thoughts regarding her. I'm sure John Hinderacker will join his colleagues at PowerLine in weighing in on her nomination.

Michelle Malkin has a round-up of information about Ms. Kagan.

DrewM at Ace of Spades gives some initial thoughts on the Kagan nomination. So does Jack M at Ace of Spades. I'm waiting to see what Gabriel Malor has to offer up when he gets around to it today. I'm sure will have something to add to the discussion later today when he wakes up from his Val-U-Rite vodka weekend of hobo-beating. (Just kidding, Ace.)

Patterico weighs in on her nomination.

Howard Bashman at How Appealing has a round-up of links from across the 'Sphere on her.

Curt Levey at the Committee for Justice blog has thoughts regarding her views on the military.

Hit SCOTUS Blog and keep scrolling down. I count ten posts on this nomination as of 12:29 PM AZ time, and I'm sure they're not done yet.

Jonathan Adler, Ilya Somin, and Jim Lindgren all give their thoughts and reaction on Ms. Kagan's nomination at The Volokh Conspiracy.

And Real Clear Politics has some choice media and blog commentary on her nomination.

Be sure to hit all of the above for your skinny on this woman. Frankly speaking, neither of us are impressed by this nomination. She lacks the legal experience. She's never been a judge (never a prerequisite to be on the high court). She has little experience before the high court. She has ties to Goldman Sachs. She's been a poor solicitor general. She has personal views that will surely guide her decisions as opposed to the letter of the law, and previous jurisprudence. In short, we oppose her nomination to the high court because she's not the sort of justice we need there. We want originalists/textualists on the high court, not activists, and she has all the earmarks of an activist.

Will the GOP oppose her? Not likely. Sure, they'll hit her with a few high, hard fastballs, and she'll stumble on them. But we're seeing between 70 and 80 votes for her in the Senate; likely closer to the mid-seventies. But she will make it, and Barry will have another ally on the high court.

That's the point that the GOP should really focus on. She has a history with Barry. They worked together throughout their lives, and this nomination smacks of cronyism. We oppose her for the same reasons we opposed Harriet Miers: She was a close friend of President Bush, and was unqualified when it came to constitutional law. That's Elena Kagan to a tee (without the ties to President Bush). She's a Barry cheerleader, and will more than likely cast a vote on the court in favor of his policies. We don't need a packed court, and she marks the second nominee that will side with Barry and his agenda.

Publius II


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