Tuesday, May 11, 2010

Elena Kagan Chosen for SCOTUS

Obama, according to his spokespeople, wanted to nominate someone who would be a different kind of nominee. Kagan falls short of this goal. If she is seated, and there is little doubt that she will be, the Supreme Court will be comprised solely of Catholics and Jews. All graduates of Harvard or Yale, there will remain only one black on the bench, Clarence Thomas who was placed there by a Republican president. Though Obama made a point of boasting that the Supreme Court would be comprised of three women now, the first woman was seated on the court by a Republican president.

From The Washington Post:

On the other hand, Kagan is by no means a radically different pick from any of the court's current members. In some ways, she would add to the cloistered, East Coast mentality of the current court. Her lack of judicial experience could be a negative, especially with a public that thinks being a judge is pretty important.

Many of the current justices hail from New York, or have ties to the city. All but one are from east of the Mississippi River. Picking Kagan does not send a message that Obama wants the court to represent the country better geographically.

Conservatives are noting the irony of a liberal Democrat president nominating a liberal Democrat who has a less than stellar record of hiring minorities. From RedState.com: Kagan, whose leadership at Harvard Law marked an unprecedented expansion of the program’s faculty, hired 32 tenured and tenure-track faculty. With one exception, all were white; only seven were women.

“Because Kagan does not have a record and because her tenure at Dean is offered as one of her qualifications for the Supreme Court, it is more than fair to ask where racial inclusion figures in her judicial philosophy,” wrote Guy-Uriel Charles, the founding director of the Duke Law Center on Law, Race and Politics. “Kagan’s hiring at Harvard is one of the few data points that we have on how she might think about racial inclusion.”

Kagan is not an outside-the-box nominee. She is very much the same old same old. If she is gay, she is not 'out' so that will not be touted. I hope Republicans rise above that. Her personal character is not in question. It is her ideology that must be questioned. Democrats do love their racial/gender/ethnic politics yet this nominee will be known as one who hasn't been a judge. That is her one difference from the others on the bench now.

Kagan previously lamented the process of confirming a Supreme Court nominee. She is on record for claiming that little is really determined of a nominee's true positions from the confirmation process. This could be interesting now that she is the nominee. She has very little paper trail and no experience on the bench of which to determine how she may rule on the court. She received a bi-partisan nod when going through the confirmation process for her current position as Solicitor General. At the time, she was said to be Obama's future Supreme Court choice. This nomination does not come out of the blue.

From the reports out there now, it would appear that Kagan is the best that Republicans can hope for from this president. Obama was no more likely to nominate anyone with conservative cred any more than George W. Bush was likely to nominate anyone with liberal cred. Since the administration of Bill Clinton, Supreme Court picks have been solely on ideology and to think otherwise is foolish. And, remember, we have the true legacy of Ted Kennedy - the nasty, contentious confirmation hearings now considered the norm - to thank.

Kagan appears to have a history of bringing in conservative thought into the process. As Dean of Harvard Law School, she hired conservative professors. Not a lot but at least some. She will have to deal with her participation in trying to ban military recruiters from the grounds of Harvard and her perceived hostility to the military. We will see Obama flakes coming to her defense over this issue.

Now is the time for scrutiny of Kagan's record and decisions. Now is the time for open and fair questioning.

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