The Elena Kagan nomination is not turning out the way the Obama administration hoped.
Instead of showcasing an eminently qualified Supreme Court nominee who would be the third woman on the Court (which is the White House’s line), this confirmation is highlighting Kagan’s extremist views and her utter lack of hands-on legal experience.
As Sen. Jeff Sessions pointed out yesterday in his outstanding opening statement, Kagan has “less legal experience of any nominee in at least fifty years.”
If confirmed, she would be the first justice in 38 years who had not previously served as a judge at any level. But her lack of practical legal experience goes beyond that. She has never practiced law beyond two brief years as an associate in a major law firm, where she argued no cases and never appeared before a jury.
Last year she received the most “no” votes of any nominee for solicitor general in U.S. history.
Just nine months ago, when she presented her first case as U.S. solicitor general, Kagan argued in the Citizens United case that the federal government should be allowed to ban books, pamphlets, and even hand-held signs if they were published or distributed with corporate funds in proximity to a federal election.
This Orwellian attempt by Kagan’s office to gut the First Amendment rightly stunned the justices and led to the Court overturning the McCain-Feingold prohibition on express advocacy by corporations. To say that Kagan’s legal record is thin and out of the mainstream is being kind.
I frankly had begun to wonder if Republicans could drive a coherent message against this nomination. But Sessions (who has an outstanding legal background of his own), Kyl, McConnell, Hatch, et al, are doing a solid job of making Kagan’s extreme political views the focus of the confirmation.
As a Clinton White House aide, Kagan argued partial-birth abortion was a constitutionally protected procedure. She recommended pushing campaign finance reform which, in her words, would favor Democrats over Republicans. Her defiance of settled federal law in banning military recruiters from the campus of Harvard Law School during a time of war reveals the temperament of an ideologue and a political partisan, not the temperament of a judge.
In my forthcoming novel The Confirmation, I write about the fact that when it comes to judicial nominations, “advise and consent” has become “search and destroy,” but only for conservative nominees. Justices nominated by Democratic presidents have generally had easy sledding. Those days are over. As we are already seeing, Kagan will be asked very tough questions. Her nomination will not go unchallenged, and will likely garner a large number of “no” votes.
Given the math in the Senate, it will be difficult to stop Kagan’s nomination. But Republicans should do their best to make the case against this nomination. They may even defy conventional wisdom and succeed. Supreme Court confirmations are funny things and often go in directions the administration did not plan, as Obama can already testify.
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