Obama to nominate Elena Kagan to Supreme Court
In a move which I predicted immediately after John Paul Stevens announced his retirement from the Supreme Court, Barack Obama is set to nominate Solicitor General Elena Kagen to fill the vacancy.
Kagan will likely have a relatively easy path to confirmation, not least because she has no record to criticize.
Kagan has never been a judge, though she has a solid reputation as a “legal scholar". Personally, I don’t trust any Harvard lawyers (even the first woman dean of Harvard Law School), but as I’ve said frequently before, elections have consequences and unless Republican Senators truly believe Kagan is incapable of or lying about upholding an oath to defend and protect the Constitution, they should vote to approve the nomination.
There’s a rumor mill suggesting that Kagan is gay, not least because of how hard she fought against military recruiting at Harvard based on the military’s ban on openly gay people serving. Could be. Doesn’t matter to me a bit. My guess is it won’t come up during the hearings, at least not directly. Wouldn’t surprise me if someone asks her a question like “Can you understand issues which relate to American families since you’ve never been married and have no children?" I think the question would be not-so-subtle code for “are you a lesbian?" Also, someone might ask whether she would recuse herself if the Solomon Amendment reappeared at the Court, which might again hint at her own sexual preference.
More interesting to me is whether she would recuse herself on campaign finance law, given that she was the government’s attorney arguing for McCain-Feingold in the Citizens United case, which she lost on a dismayingly close 5-4 vote. Campaign finance is not a dead letter; there will certainly be more related cases before the Court. If she had to recuse herself, that could only be good for the nation, though I doubt she would do so.
Looking at the above, it would seem Kagan’s biggest weakness is that her involvement with the law has been, as Mike Allen of Politico puts it, “as an advocate and an activist, not of a fair-minded, impartial judge.”
At the end of the day, Kagan probably won’t be a very good Justice, but she probably wouldn’t be substantially worse than anybody Obama would give us.
Republicans should take time during the hearings to explain to the American people why the Supreme Court and the choice of its members is so important to the nation and use the hearings to make broader arguments against Barack Obama, his policies, and his utter lack of respect for the constitution. And then they should approve Kagan. She might not be good, but the next in line won’t be any better.
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