IT'S ELANA KAGAN - THANK GOODNESS - I GUESS

May 10, 2010

Up until late last night, I truly believed that President Obama would nominate either his Regulatory Czar Cass Sunstein, Federal Appellate Judge Diane Wood,  or former Georgia Supreme Court Chief Justice Leah Ward Sears to the Supreme Court.  After all, there is no one in the Obama Administration, like Dick Morris in the Clinton Administration, who would move the President an inch toward the center.  Sunstein and Sears represent the extreme left of Obama's ideology.

Then came the FOX news report early Monday morning that the President would name Elena Kagan to the High Court.  I must say of the fifteen or so Obama was probably considering, Kagan is one of the four least offensive picks and is slightly to the right of Mr. Obama's last nominee, Sonia Sotomayor.  But here is the catch: She has absolutely NO PAPER TRAIL

Kagan's selection reflects President Obama's desire to nominate someone who has already been vetted and confirmed by the current Senate and has a reputation of working well with others. Kagan, the current Solicitor General, was supported for that post by liberals and conservatives alike. By all accounts Kagan is thought to be brilliant and has an easy-going approach that makes people warm to her--or at the very least, not provoke knee-jerk convulsions against her. This temperament even led to a New York Times article wondering if she was too bipartisan for liberals looking for the president to select a left-wing hardliner. Unlike the newest Supreme Court justice, Sonia Sotomayor, who comes across as a rather likable everyday person, Kagan may be viewed by regular Americans as a stuffy intellectual.

A closer look at her background and her "interests" reveal a liberal who has a heart, but not necessarily a brain.  This is a big difference considering our own motto that liberals "feel" and conservatives "think."  Consider these items:

She's the President of the biggest good 'ole boys club in the nation. Her homosexuality is one of the worst-kept secrets in the judiciary. She's a terrorism-fightin', gay-rights-tootin', and politically saavy lawyer. We don't know what else she is. Because she hasn't written all that much. But we do know she's 1) in favor of calling the war on terrorism a war, 2) against Don't Ask Don't Tell, and 3) strongly against having military recruiters on campus.

We also know, 4) that she's taken a position in favor of Supreme Court nominees having to disclose much more than they normally during their hearings, which makes the other stuff just a little more interesting. After all, if we only know 4 things about her, and one of those things is that she believes we should know more, the confirmation hearings should be nothing short of spectacular, right? Well, maybe. Jonathan Adler wrote:

In “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), [Kagan] argued that probing questions about a nominee’s views were not only appropriate but essential.  According to Kagan in 1995, the Senate should ask — and demand answers — about both a nominee’s “broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.”  This article will make it particularly difficult for Kagan to avoid providing more detailed answers than have other nominees in the past, and will give Senate Republicans an additional line of attack — and if she refuses to go along she could even be accused of a “confirmation conversion.”

That could be cool, but it's unlikely. As soon as any Supreme Court nominee gets before Congress, they immediately go into stealth mode. That's protocol, and that's tradition. And if Kagan is master of anything, its protocol and tradition. You don't become head of Harvard Law, and get a nomination to the Supreme Court, without following those things. So while Kagan might have led to fireworks in the Senate, I think she'll amount to a lot of what previous confirmation hearings have been — interesting, but in the end, another rhetorical tap dance.

President Obama said Monday that Kagan would demonstrate the same independence, integrity and passion for the law exhibited by retiring Justice John Paul Stevens.

If confirmed by the Senate, Kagan would become the third woman on the high court. At 50, she is relatively young for the lifetime post and could help shape the high court's decisions for decades.

Obama said the former Harvard Law School dean is widely regarded as one of the nation's foremost legal minds and introduced her in the White House East Room as "my friend."

Kagan said she was "honored and humbled by this nomination." She called it "the honor of a lifetime."

Obama cited what he called Kagan's "openness to a broad array of viewpoints" and her "fair mindedness."

In a statement issued before Kagan had completed her remarks, the lawmaker who will preside over her confirmation hearing, Democratic Sen. Patrick Leahy of Vermont, said, "The Senate should confirm Ms. Kagan before" Labor Day.

The Republican leader, Sen. Mitch McConnell of Kentucky, said his party would make sure there was a "thorough process, not a rush to judgment" on the nomination. "Judges must not be a rubber-stamp for any administration. Judges must not walk into court with a preconceived idea of who should win," he said, adding that Republicans would have a vigorous debate on that principle.

Noting that Kagan is "an acclaimed legal scholar with a rich understanding of constitutional law." We are really not left to wonder if she believes in a living, breathing, ever adaptable Constitution, or an originalist like Antonin Scalia and Samuel Alito. Having a rich understanding of Constitutional law these days means she knows more about case study than the Constitution itself.  It's one thing to know what the courts say the Constitution says, quite another to know what the Constitution says for itself.

Kagan's personal life may also become an issue. Last month a minor media controversy blew up when CBS News posted a blog report saying Kagan, who is not married, would become the "first openly gay justice." The White House reacted strongly to the report, questioning the network's journalistic integrity. CBS eventually pulled the post off the website. The White House also reportedly distributed talking points to counter an on-line report that Kagan did a poor job of diversifying the faculty at Harvard when she was law school dean.

Overall, I see Obama's choice as less radical, but just as contemptuous of the Constitution as the three we feared he would nominate, viz, Sunstein, Wood and Sears.  One thing is for certain, Mr. Obama wanted another woman, a liberal, having a second minority status "a homosexual," possessing empathy, not a practicing Christian (certainly not a Protestant) and could get confirmed despite the Democrats no longer possessing a filibuster-proof Senate. That fact alone may be the reason Sunstein, Wood and Sears didn't get the nod.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.