Legal Commentary

The Kagan Debate: What It Is And What It Is Not

By Big Tent Democrat

[The President] shall have Power, by and with the Advice and Consent of the Senate, [. . .] to [. . .] appoint [. . .] Judges of the supreme Court - Article II, Section 2 of the Constitution

When discussing President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, I think it is important that we understand the process and what stage we are at. Many people are just joining the discussion now, after President Obama nominated Kagan. But the discussion began soon after Justice John Paul Stevens announced his retirement. That discussion centered upon who Obama should pick. Many, including myself, hoped Obama would choose a committed progressive voice with a clear record. For some of us, Pam Karlan would have been the dream pick. Judge Diane Wood, who appeared on the reported short lists, was the preferred short listed candidate amongst most progressives.

The President, exercising his constitutional power, chose instead to nominate Kagan. While discussions continue to rage as to why Obama preferred Kagan to Wood, from a Constitutional perspective, the issue now becomes the role of the Senate exercising its Advice and Consent power. It is my view that the Senate, in the exercise of its constitutional duties, must deeply explore the legal views of the nominee before "consenting" to the President's choice. More . . .

My view regarding the Senate's role is far from universal. I daresay it is the distinct minority view. But I continue to advocate for it. For me, one of the most important issues regarding the Kagan nomination is the issue of the Senate's role in the selection of a Supreme Court justice. I categorically reject the idea that the Senate should be a rubberstamp for the President. Accordingly, I would expect significant Republican opposition to the choice of a Democratic President.

But neither should Democratic Senators be a rubberstamp to a Democratic President. This is especially so when it comes to a nominee like Elena Kagan, whose views on many, if not most, of the legal issues of the day are not publically known. But this process does not entail a continuation of the discussion of who the President should have picked. The question now is whether the person the President DID pick deserves Senate confirmation to sit on the Supreme Court.

This has little to do with the notion of being "qualified." Like John Roberts and Samuel Alito before her, Elena Kagan is clearly qualified. But are her legal views acceptable to the Senate? In 2005, I urged a No vote on John Roberts. In particular I embraced the manner that the NYTimes Editorial Board presented the argument:

Few lawyers in America can compete with Mr. Roberts in professional accomplishments. [. . .] If the test were legal skill alone, Mr. Roberts would certainly pass. But the Senate and the American people have a right to know whether he would use his abilities to defend core rights and liberties, or to narrow them.

It has been difficult for senators to extricate his views. During his brief term as a judge, he has written few notable opinions. The White House has refused to release the memorandums he wrote in the solicitor general's office, which could have been revealing. Memos from earlier in his career raise red flags on issues like civil rights, women's rights and the right to privacy - which he dismissed, at one point, as the "so-called 'right to privacy.' "

[. . .] Given these concerns about his record, Mr. Roberts needed to use the hearings to reassure the American people in a substantive way that he would be a vigilant guardian of their rights. [. . .] Over days of testimony, he dodged and weaved around many other critical legal issues. On abortion, church-state separation, gay rights and the right of illegal immigrants' children to attend public school - all currently recognized by the court - he asks to be accepted on faith. That just isn't good enough. The Constitution says that senators must give their "advice and consent" to Supreme Court nominees. To do that in a meaningful way in the case of Mr. Roberts, they need information that has been withheld from them.

[. . .] Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.

(Emphasis supplied.) Elena Kagan carries the same burden in my view. The process is no longer about who President Obama should have chosen. It is about who he has chosen and whether that person can meet the burden of earning the consent of the Senate to her being seated on the Supreme Court.

Speaking for me only

Full post as published by TalkLeft on May 12, 2010 (boomark / email).