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During the Bush Administration, there was a huge outcry by Republican Senators, who had the majority at the time, railing against Democratic techniques to hold up judicial nominees. Only the concerted efforts of a group of “moderates” on both sides avoided the dreaded “nuclear option.” Today, the roles are reversed and Republicans have resorted to the very tactics they objected to on the part of the Democrats circa 2004. This smacks of a little bit juvenile behavior and whole lot of hypocrisy.
Then, the argument was that nominees deserved an up-or-down vote on the Senate floor. They aregued that the nominees were qualified for the Federal bench. Today, save a few, rare, extreme cases, no one can necessarily argue the legal credentials of Obama appointees.
And what are the criteria? First, all ethical questions must be answered to the satisfaction of the Judiciary Committee. Much of this achieved through financial disclosures and FBI background checks. Do they pay their taxes? Did they hire some illegal immigrant to cut their lawn? Were they ever arrested?
Secondly, their legal credentials must be of the top order. The American Bar Association does a fine job of looking at their credentials and assigning a grade. But, because the ABA is influenced by politics, any score lower than a “B” should be further scrutinized by the Judiciary Committe for these political influneces and ABA objections investigated when the nominee testifies. This way, the Senate does not outsource their investigative duties in this area to an allegedly independent body like the ABA.
Also, the Committee needs to look at their academic writings and, if a judge, their previous opinions to to cull some predictive political ideology, but to gauge their abilities to legally reason. Two observations are in order at this point. Some quarters are taking note of the fact that Elena Kagan was not a judge and has no judicial experience. Some view this in a negative light. However, nowhere is it written that being a sitting judge is a necessary prerequiste to becoming a Supreme Court Justice. Many great Justices joined the Court without judicial experience. Three recent examples are Byron White, Lewis Powell, and Chief Justice William Rehnquist. On the other hand, some argue that having a nominee from outside the judiciary allows for some empathy litmus test. Obama likes to insinuate that this is desireable in a nominee as if this person has some special abilities. Both arguments are equally faulty.
A lot has been mentioned about the demographics of the bench. For example, embarrassing commentators like Pat Buchanan like to note that Jews may make up 2% of the American population, but 33% of the Supreme Court if Kagan is confirmed. Here is a news flash for Pat Buchanan: the other 67% are Roman Catholic. OH! The horrors- no Protestants on the Supreme Court. This argument is akin to the argument that there must be a black on the Supreme Court. Again, it is written nowhere that the Supreme Court need be reflective of society in general. Does it really matter if every Justice was black as long as they reached a reasoned decision. Remember that it was an all-white Court which had the greatest impact on civil rights litigation in this country. Then there are the ridiculous musings about the Ivy League backgrounds of the current Court. To say or insinuate that Ivy League schools necessarily churn out liberal lawyers is to deny the reality of the situation. Would anyone dare describe Roberts, Scalia, Alito or Thoas as conservatives? Yet, they all received their law degrees from Ivy League schools. And again, so what? This notion of forced diversity on the Court- whether espoused by liberal or conservative, Democrat or Republican- is both ludicrous and hypocritical.
The third, and probably most troublesome criteria falls under the heading of judicial temperament. And it is under this category that the notion of ideology comes into play. However, by the term “temperament,” one needs to determine whether they can decide cases on the merits of that case given the available case law. Unfortunately, because of Democratic and Republican turn-coat (Arlen Specter) badgering of more-than-qualified candidates like Robert Bork, the new standard is not to take stances on issue because “it might come before the Court.” This tactic has been used by Republican and Democratic nominees ever since.
Elena Kagan actually wrote a law review article decrying this strategy. Whether Republicans press her on this issue and attempt to portray her as a hypocrite remains to be seen. But suffice to say, there is a big difference between being a Supreme Court nominee and the academic musings in a law school review.
Likewise, already there is tremendous uproar over Kagan’s memos while a law clerk for Thurgood Marshall, while a member of the Clinton White House, and while Solicitor General. A perfunctory review thus far shows that Kagan is adaptable to her boss at the time. For example, her memos while a law clerk for Mrashall would lead one to believe she is a hell-bent liberal activist. But, are the memos reflective of her personal views or were they tailored to meet those of her boss? In the Clinton administration, some of her memos, especially those on the technicalities of an abortion law, would lead one to conclude Kagan was more centrist and politically adept. And say what you will about Clinton, he was certainly politically adept. While Solicitor General, the office represents the government’s view. They may personally and plausibly disagree with the stance on particular issues, but have to do so anyway. For example, lets assume Kagan is, for the sake of argument, a stone cold liberal, card-carrying member of the ACLU and supports an absolute separation of church and state. Yet Kagan’s office defended the government’s actions in this term’s Salazar case that allowed a cross to remain on federal property. To believe that something can be weened from all this to allow us to reliably predict how Kagan will define a particular case before her misses the point entirely. It is as if the the Republican Party is attempting to Bork nominee Kagan.
The point is to give Kagan a fair and honest hearing and then if the votes are there in committee, to move her nomination to the Senate floor. There, the up-or-down vote on her nomination- something Republicans requested during the Bush administration- would take place. Whether the vote is 59-41 or 100-0 for confirmation is of little consequence other than a historical footnote. The bottom line is that unless the nominee is some unethical, uneducated radical, they should be afforded at least a fuyll Senate vote. It is what the Republican Party lamented six short years ago and what they should carry through on now.
It is difficult to determine what any nominee will do once they are seated on the Supreme Court. Whoever would have thought that Warren and Brennan would have become such hard core liberals? Or that Byron White and Lewis Powell would become more conservative? Or, more recently that David Souter would join the liberal wing of the Court. It is best to remember that Kagan will be but one voice out of nine and one that does not control the agenda of the Court. If Republican fears are realized, she is but one liberal replacing another liberal. The conservative wing is not going anywhere soon and the wild card- Anthony Kennedy- rrelishes his role too much to consider leaving. Any retirements by these five Justices would upset the balance on the Court, not Elena Kagan. It also remains to be seen under whose sway Kagan will fall once on the Court.
The Republicans should adhere to a policy of moving judicial nominees quickly through the confirmation process- say, a 90-day limit- barring any unforeseen “surprises” as a result of the investigative process. Then the nominee should be voted upon by the full Senate after some pre-determined amount of debate. This is not the proper battleground for Republicans. To delay her a vote on the Senate floor would be hypocritical given past Republican arguments regarding the judicial confirmation process. But most importantly, a principled approach in thia area would lay the groundwork for the high road down the line while proving “bipartisanship” in the short term. This will make greater sense in about two years when a Republican again occupies the White House and is making judicial appointments. In 2012, Republicans can look Democrats in the eye and remind them of 2010. If they blink, then it is they who will look like the hypocrite.