The headline, from Reuters:
Top Republican sees bumpy Kagan court confirmation
And the lede:
Supreme Court nominee Elena Kagan will face tough questions at a Senate confirmation hearing because she has never been a judge and has no record of judicial opinions, a top Republican senator said on Sunday.
As if this is news.
With judicial appointments in general, the question is no longer whether or not the opposition will obstruct, but, rather, how they go about doing it. To the administration’s favor in the coming confirmation fight for Elena Kagan is her one great merit throughout—she is very good at appeasing conservatives. Politically speaking, this makes the Republican task seem even more bizarre. Not only do they intend an obstructionist fight over a Supreme Court nominee—their last dalliance in these waters proved so effective—but they are going to make this stand against the most vanilla, conservative-friendly nominee Obama could have picked.
The rhetoric is already insane, leaving us to wonder what will percolate through the media filters. At the grassroots level, a Republican associate of mine insists that Kagan’s conservative (“centrist”) tendencies demonstrate how extremely leftward President Obama is running his administration. At the very best, thus far, the Republicans have two main routes open to them: fall in and echo the valid criticisms of the left, or draw an abstract, even arbitrary line in the sand and pretend they know what they’re doing while blindly obstructing the nomination. To the GOP’s credit, we have not yet heard of anyone attempting a secret hold against a Supreme Court nominee. I mean, I would not necessarily be surprised, but I figure custom, if not the rules themselves, speak against it. (No, I never figured to look it up; if it is possible, it will one day become relevant, and then I’ll know—it won’t make a whit of difference then, or anytime until.)
Point being, there is much to question and even criticize about this nominee. Just, you know, to take one not quite at random, how the hell do you nominate to the Supreme Court a Solicitor General who argues—and unsuccessfully, at that—that the government should have the right to carve out niches of speech that are exempt from the First Amendment? With all manner of constructions available suggesting an argument akin to child pornography—that its mere creation is illegal, therefore its transfer as well—Kagan chose naked, jackbooted thuggery. It was dog fighting; how could she lose?
… throughout the decision written by Chief Justice John Roberts is a forceful, often derisive, rejection of the government’s arguments, which Roberts deemed “startling and dangerous.”
The office of U.S. Solicitor General Elena Kagan had proposed an exception from the First Amendment for depictions of animal cruelty, such as now exists for obscenity. Kagan also had urged the justices to adopt a standard that would have balanced the value of contested speech with its societal costs.
Roberts slammed the door on that idea. “Our Constitution forecloses any attempt,” he wrote, to outlaw speech on the basis that it simply “is not worth it.”
Eight to one. Oh, well, she’ll always have Alito.
While President Obama could have made a bold appointment to the Supreme Court—Dawn Johnsen didn’t even make the short list—the settling criterion apparently had something to do with perceived ease of confirmation. Kagan, or else Judge Merrick Garland of the D.C. Circuit, was considered the easiest confirmation. There was also Judge Diane Wood, who, compared to the withdrawn OLC nominee Johnsen, was probably an easier confirmation, but would still have been a breath of fresh air not only to Obama’s liberal supporters, but also anyone with the slightest interest or concern about civil liberties.
The conservative factions will reach for the ridiculous in their argument against Kagan in part because the most valid critcisms of her nomination come from the left. Faced with the prospect of sharing common ground with, and thus empowering, the left, Republicans will choose instead a petty fight only spectacular by the magnitude of its head-meet-wall drollness.
It’s not that there is nothing of substance to talk about. There is. But the sober discussion is likely to take place away from the headlines. If these early murmurs hold true, and the GOP chooses the obstructionist route, it will be a sad sight to see them pass by so many valid questions in favor of the superficial, accessible, two-dimensional caricatures of issues—cartoons, really—that make for just another day in American politics.
As Reuters notes:
The Obama administration on Saturday wrote to the National Archives asking to expedite the release of all of Kagan’s records, including those from her tenure as White House associate counsel to President Bill Clinton between 1995 and 1999.
The letter by Robert Bauer, counsel to Obama, sympathized with the mammoth task involved in releasing 160,000 pages of Kagan’s records but said their quick release was necessary for the Senate to evaluate her nomination.
Sessions said he was concerned about Kagan’s attempts to keep Harvard’s policy of barring military recruiters from the campus during a time of war and would question her about it during the hearing.
“This is no little-bitty matter,” he said.
While Kagan overturned the Harvard policy after a Supreme Court ruling, Sessions said at various times during the debacle she “was not in compliance with the law … and it was because of a deep personal belief that she had this policy.”
Republicans argue that Kagan opposed the on-campus recruiters because she opposed the ban on gays serving openly in the military, seizing on it to portray her as anti-military.
“She would not let them come to the area that does the recruiting on the campus,” Sessions said. “And this is not acceptable. It was a big error.”
Former Republican House Speaker Newt Gingrich, speaking on “Fox News Sunday,” called on Obama to withdraw Kagan’s nomination because she was “antimilitary” and “we’re in two wars.”
Judiciary Committee Chairman Patrick Leahy, a Democrat, defended Kagan by saying she was trying to follow Harvard policy, noting that during the episode the recruiters remained on the campus.
Here we go, then.