Monday, June 28, 2010

Why elections matter.

This week brings the confirmation hearing of President Obama's nominee for Associate Justice to the Supreme Court. The nominee, Elena Kagan, will undoubtedly be a fitting replacement for Justice Paul Stevens. Stevens was one of the most liberal members of the court, and Kagan seems to be cut from the same cloth. Although her paper trail is a bit harder to track than most nominees are, I am certain the President and his team have done their homework and know the views of Ms. Kagan quite well.

The theatrics of the nomination process are now in full swing, as conservative members of the Senate Judiciary Committee will be trying to get Ms. Kagan to own up to her liberal views. This is nothing but politics, and anyone paying attention knows it. From a political standpoint, the nomination is brilliant. Kagan has never served as a sitting judge, has very little in the way of legal writings, and has a very narrow paper trail that could be used against her. She does have reams of paper from her time as an Associate White House Counsel and policy adviser to President Clinton, and in current roll as Solicitor General for President Obama. However, if you think the Clinton library is going to make her solicitor’s documents public, don't hold your breath.

From all indications, Ms. Kagan is an incredibly smart person. Professor, Dean of Harvard Law School, and her time working in two White House administrations make for an impressive resume. She is nowhere near my choice for an Associate Justice, but she is the President's nominee, and he won the election. That is the long and short of it.

Elections matter.

There was a time, not so long ago when the President picked his nominee, and unless there were huge red flags, allegations of corruption, mental capacity, or shady dealings in the nomination process, the President's pick would be seated on the court. This is not the case today.

Ever since the nomination of Robert Bork, and to a lesser extent Justice Clarence Thomas, these nomination hearings have become very contentious. Robert Bork had mountains of past decisions and opinions as a circuit judge, Solicitor General, as well as being an anti-trust scholar. During his confirmation hearings, Bork was very candid. He answered the probing questions with his honest opinion. Basically, he hung himself with a rope of his own making.

Elena Kagan once thought the Bork hearings should serve as a role model for the process. She thought his honesty in answering direct questions was very educational, and helped the committee come to an informed decision. I doubt there will be much openness or very many direct answers to the Senator's questions when she in front of the committee this week. This is the game where you try to get the nominee to give that one juicy sound bite so you can beat them relentlessly with it for the remainder of the hearings.

With the last three Justices taking the place of their similar-minded predecessors, the balance of power on the court has remained the same. It is a four-four split, conservative and liberal, with one Justice, Anthony Kennedy the one swing vote.

Barring a conservative justice retiring during the Obama presidency, when Justice Kennedy retires, that is when you will see the no holds barred, battle-royal to replace that all important swing vote. Whet that day comes; the confirmation hearing of Elena Kagan will seem like a taffy pull.

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