Justice Kagan style

Now that Elena Kagan has been sworn in as the newest Supreme Court justice, some of the media are musing over what we might expect over the next session or so. Interesting, how they’re framing the issues…

Like this LA Times piece.

The justices soon will be called upon to decide whether states like Arizona can enforce immigration laws, whether same-sex couples have a right to marry and whether Americans can be required to buy health insurance. Kagan’s record strongly suggests she will vote in favor of federal regulation of immigration and health insurance and vote to oppose discrimination against gays and lesbians.

This is cloudy terminology.

Arizona passed a law that applied (and therefore favored) federal regulation of immigration. But it’s been distorted in the reporting.

Federal regulation of health insurance is a broad phrase, but what the court will no doubt face is the challenge by the states to the federal mandate to purchase health insurance, which they claim is unconstitutional.

And the suggestion that Kagan will likely “oppose discrimination against gays and lesbians” is also purposely nebulous. People of goodwill tend to oppose discrimination against other people. Let’s talk, instead, about laws and social policies regulating what people do. We’ll be doing plenty of that come Fall, when the mid-term elections heat up and the Supreme Court opens its new session.

So here’s a request for big media: watch your language.

Kagan finessed the military issue

By last week’s end, everyone knew Elena Kagan charmed most of our elected representatives involved in the Senate confirmation hearings and deftly maneuvered her way past any confrontations with her own assessment of those hearings as vapid and hollow, while she danced past any interrogations into her radical support for partial-birth abortion in the Clinton adminstration.

But she also finessed the issue of her handling of the US military in her tenure as Harvard law school dean, her putdown of military recruiters as a stand against the ‘Don’t Ask, Don’t Tell’ policy offered as compromise legislation by President Bill Clinton himself during his administration.

So Kagan told the Senate Judiciary Committee last week, “We were trying to do two things, to make sure military recruiters had full access to students and protect our anti-discrimination policy.”

That is, Kagan spent the week arguing that the policy was utterly meaningless.

“Military recruiters had access to Harvard students every single day I was dean,” she boasted.

And: “I respect and indeed I revere the military.”

Sen. Jeff Sessions, the ranking Republican on the committee, wasn’t buying it. He told Kagan, “You keep referring in your e-mails and all to the military policy. Isn’t it a fact that the policy was not the military policy, but a law passed by the Congress of the United States?” He complained that recruiters who had served in Iraq or Afghanistan “were appearing to recruit on your campus … and you were taking steps to treat them in a second-class way.”

And: “Why wouldn’t you complain to Congress and not to the dutiful men and women who put their lives on the line for America every day?”

The answer is simple. To complain to Congress would entail standing up to Democrats, including her old boss, President Bill Clinton.

So instead, Kagan and company targeted U.S. troops acting under orders. When doing so became inconvenient, that is, when it impeded her ascension to the Supreme Court, she argued that the military ban didn’t really do anything.

And in the end, it worked wonders….to illustrate and finally prove how right she was in calling the confirmation hearings vapid and hollow. It was every bit the charade Kagan said it was, all along.

Kagan’s confirmation hearings

Add this to the spectator sports going on right now in exciting arenas….World Cup. Wimbledon. Prelude to the Tour de France. Buildup to the MLB All-Star Break. US Open to the British Open.

And now, finally, the Senate confirmation hearings for Supreme Court nominee Elena Kagan begin. Okay, most people don’t care. But we journalists must, and must understand the players and the stakes.

And that’s the key point of interest here, given that Kagan’s confirmation is a certainty.

For Congress, it’s an election year, and the hearing provides Democrats and Republicans a platform to make their respective campaign arguments.

But what’s more important is that they make their respective cases before the American people about their view of the Constitution and its interpretation. Asking the right questions is critical. And it’s not ‘will the Republicans resort to the filibuster?’

A better question would have been, “Would it be politically smart for Republicans to use the confirmation process for Elena Kagan to highlight differences between the parties on the proper role of the Supreme Court?”  I’d submit that the Sotomayor confirmation process demonstrates that the right answer to that question is a resounding “yes.”

Because the mid-term elections are right around the corner.

Sex, softball and the Supreme Court

This is not helping the media image of ridiculous gossip-mongers, nor is it serving the causes of sensibility, human dignity……or girls’ softball.

So Elena Kagan played softball. So did I. And a slew of other women out there in the professional and private world. Enough of the extrapolation that softball means something other than enjoying sports and a good outing on a summer afternoon.

The Wall Street Journal ran a picture on its front page of Kagan playing softball in college. Immediately, the paper was attacked by gay rights groups claiming the picture was a coded message about Kagan’s sexuality…

It does of course lead to the question everyone is asking privately, but cannot bring themselves to ask publicly due to matters of taste and etiquette: is America ready for a softball player on the United States Supreme Court?

The only softballs I don’t want pitched to Kagan, or any other nominee to the court, are the ones no doubt coming in the Senate confirmation hearing.

What Kagan did write

Most jurists leave a paper trail for interrogators to examine in the confirmation process when judges are nominated for advancement. We found out quickly this week that Elaine Kagan, nominated for a lifetime appointment to the U.S. Supreme Court, had neither a judicial background nor a paper ‘trail’. But what little she wrote does provide a paperweight for senators preparing for the confirmation hearings.

This Chicago Tribune op-ed by a member of the editorial board not known for critiques of this administration…..is especially candid and scrutinizing. Most importantly to me, it raises good questions.

Like….will Kagan become what she so criticized in her book review for the University of Chicago Law Review.

She reviewed Stephen Carter’s book “The Confirmation Mess,” which criticized how the fight over Robert Bork’s U.S. Supreme Court nomination turned the Senate’s constitutional “advise and consent” process into, as the book’s title suggests, a politicized mess.

You may recall how accusations of right-wing radicalism against Bork, led by Democratic Sen. Edward Kennedy of Massachusetts, were harsh enough to add “bork” to dictionaries as a verb for character assassination.

It was a debacle for all fair-minded people.

Yet, messy as it may have been, the young up-and-coming Kagan expresses a preference for Bork’s interrogation over the “official lovefests” she saw in hearings for Stephen Breyer and Ruth Bader Ginsburg.

While noting she did not mean to argue that nominees “must answer any question whatsoever,” Kagan said she deplored the “road of silence” on which “Carter and recent nominees would take us — to a place where comment of any kind on any issue that might bear in any way on any case that might at any time come before the court is thought inappropriate.”

Her words sound doubly ironic now.

And here, Clarence Page nails it:

She has accumulated an impressive resume as solicitor general and the first female dean of Harvard Law School without letting anyone know much about what she really believes — or if she deeply believes much of anything at all. As a result, she probably will survive the soul-crushing torture of Senate confirmation hearings and be easily confirmed, provided she ignores the advice she once offered quite forcefully to senators and to nominees who find themselves in the very confirmation process she now faces.

Judging from the spin

I’ve been a Court watcher for years. I’ve done a lot of legal coverage, and have been tempted to go for a law degree. An opening on the Supreme Court always provides compelling opportunities to deliberate over the Constitution and original intent. If only politicians and media seized them…

So we need to sort things out ourselves with available information and critical thinking skills. Like….what would the coverage be like if a nominee for the Supreme Court with the exact same profile as Elena Kagan were named by a conservative Republican president?

It likely wouldn’t be ‘It’s actually a good thing that she’s not a judge and doesn’t have much of a paper trail.’ Honestly.

The other eight justices on the Supreme Court all served on the bench at some point in their lives and came to Capitol Hill with a portfolio of opinions to present to the Senate before answering questions.

But Kagan has none of that. The material she submitted to the Senate Judiciary Committee last year for her solicitor general nomination covered about a dozen articles, including two book reviews. The rest of the background material was made up of e-mails and a slew of speeches and interviews she gave.

In that case, maybe I qualify.

Until Kagan is confirmed

Senators will soon be involved in the confirmation hearings for Elena Kagan, President Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court. It’s a lifetime appointment, and big media aren’t giving the nominee much scrutiny. They’re  mostly spinning White House talking points in a montage of nearly identical sound bites, which over and over tell us about her ‘great mind’ and acceptability to a broad range of people.

Her confirmation is a certainty. So while the hearing process is still open, here’s some advice to senators who aren’t prepared to rubber stamp the nomination: ask questions. The nominee, herself, once advocated for a thorough examination of judges.

In a 1995 article for the University of Chicago Law Review, Kagan argued for probing, detailed inquiry during Senate confirmation hearings for federal court nominees, writing: “The kind of inquiry that would contribute most to understanding and evaluating a nomination is . . .  discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues . . . seeing how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces.” She has written that she found Justice Ginsburg evasive during her own confirmation hearings: “I was frustrated by what I called Justice Ginsburg’s ‘pincer movement’ — the tendency to say that questions were either too specific or too general to be able to answer, with little ground in between.”

So now what? Kagan is in Ginsburg’s place, being examined for her merit as a potential lifetime Supreme Court justice.

Would she answer such questions forthrightly? There are worrisome indicators that she would not.

She is on record for believing in the force of settled law, when it comes to a woman’s right to abortion. But then, she is very much against settled law on same-sex marriage and even the military’s policy with regard to homosexuality.

Kagan called the “Don’t Ask, Don’t Tell” policy “repugnant” and “immoral,” but repugnant to what? To her personal political sensibilities, or to the Constitution? Was that unanimous Supreme Court correct to rule against Kagan, or was it incorrect? She has referred to “Don’t Ask, Don’t Tell” as representing a “military policy,” but it was established through an act of Congress, and is therefore the American people’s policy. Should Joe Biden be banned from the Harvard campus for having voted for it? And what precisely is the constitutional weight of Elena Kagan’s repugnance or her sense of immorality?

Good questions. They should be asked….and answered.