Today Barack Obama made official what has been rumored for several days, and nominated current Solicitor General and former Harvard Law School Dean Elena Kagan to fill the vacancy created on the Supreme Court by the retirement of Justice Stevens. In response to this news, and the sudden flurry news stories concerning her, it has come to the attention of many Americans today that Obama’s nominee is - how shall we say this delicately? – not very attractive. Furthermore, prior to the announcement, back when most observers still believed Diane Wood would be the pick, a furor erupted at the suggestion (apparently widely held among people allegedly in the know) that Kagan was also gay. So, as attention to the nomination has moved today from the hardcore SCOTUS junkies to the general news-consuming public, a whole class of people have had two first impressions formed of Elena Kagan: 1) that she is ugly, and 2) that she is rumored to be gay.
Additionally, a number of clips from Kagan’s relatively scant paper trail have already made their way into my inbox from a number of conservative organizations. Purportedly, Kagan called the Constitution “defective,” and suggested that the Federal Government had the authority to censor books in libraries. I have no idea whether either of these claims are true, or whether they are fair in the context in which they are made. I don’t have the time to examine them right now, and frankly, I don’t care.
What’s of more interest to me is the predictable sniffy responses from some conservative activists who like to fancy themselves as high road travelers in the midst of all this political fracas. If past history is any indicator, this species of craven, image-obsessed pundit snobbery will spend more time attacking sites like RedState for “unfair” and “mean-spirited” attacks than they will attacking the nominee (and by extension, Obama) himself. Despite decades of experience to the contrary, some conservatives seem determined to believe that if we are only nice enough and play fair enough, Democrats and the media (apologize for the redundancy) will give them pats on the head and (hope springs eternal!) fair media coverage for Republican candidates.
Those of us over the age of 20, however, ought well to know better. Certainly anyone who remembers the disgraceful shams of the Robert Bork and Clarence Thomas hearings, and thinks “taking the high road” is called for in the context modern judicial nominations ought to be horsewhipped for lack of political judgment. Indeed, recent experience should remind us that even the comparatively tamer hearings on John Roberts and Samuel Alito, as well as numerous Republican appellate nominees, featured startling vitriol and utterly unfair smear campaigns. And it is hard to find an example of bitter assaults on GOP nominees that were not gleefully embraced by, if not the current President, certainly his Vice President.
For my part, the Court (particularly, the liberal members of the Court, and there is no doubt that Kagan will be such a liberal member), have willingly made themselves part of the political process in this country, judging on frank political questions that previous generations would have justly left to Congress and the President, and frequently removing such questions entirely from the political process on only the flimsiest of textual pretexts. As such, they are no more entitled to genteel treatment than are those who run for President, or the Senate. And given that they will be enjoying life tenure, in which they will cast votes on frankly political questions for decades after the public's one and only opportunity to call them to account, if I can be relatively certain that they will generally cast votes that are against the best interests of this country, then I feel no qualms about leveling any attack against them that I feel will be effective.
This, of course, is exactly the standard the left has used for conservative judicial nominees for decades. It matters not if the allegation is truthful, or frankly even believable, so long as it is effective.
Take Clarence Thomas. No rational thinking person could believe that the erudite and taciturn Thomas actually asked Anita Hill whether one of her pubic hairs was in his Coke. However, the Democrats made a judgment that it was necessary to knock some Southern Democrats off the fence in an attempt to defeat Thomas’s nomination. They knew an obvious fact about Southern White Democrats that remains true today; per capita, they have the largest number of actual racists that still exist in this country. So they tried to get these racists to lean on Senators Boren, et al, by drumming up a story that only racists would believe about Clarence Thomas, because it played directly into their stereotypes of black men, no matter how well-educated or soft spoken. Their despicable plan to defeat Thomas by using racism against him was especially cynical given their laughable claim, pitched to mealy-mouthed Northeastern Republicans, that Robert Bork represented one of that very group a mere six years earlier.
My natural inclination would be to believe going after Kagan for being ugly and possibly gay, or any personal characteristic, is a tactic of dubious efficacy. hHowever, the left certainly seemed to get a lot of mileage out of such things when they were going after Paula Jones and Linda Tripp. Oh, and Joe the Plumber. And Sarah Palin. And George Bush. And the other George Bush. And Dan Quayle. And Robert Novak. And Rush Limbaugh. And Sarah Palin. And Michelle Bachmann. And Ann Coulter. And Sarah Palin. I suppose it's possible that Kagan, part of Clinton's defense team responsible for orchestrating the personal professional decimation of Jones and Tripp, might have piped up with a private 'Hey, come on, guys,' while numerous Clinton surrogates assailed Jones and Tripp for being, you know, ugly, but I certainly don't recall such a statement ever being made in public. But then, she's free to clarify that now if she likes.
Folks, at one time, the Supreme Court used to be about the law. Now, the Supreme Court is about politics. And politics ain’t beanbag. And this particular brand of politics isn’t the kind of politics that can be undone four years from now. I’m not saying Kagan can be defeated, but that isn’t any reason to unilaterally disarm, or refuse to at least try to score some points off of Obama and the Democrats who will inevitably confirm her in the process.
There’s a time and a place for high-mindedness. The Democrats have shown us that neither election time nor Supreme Court nomination time is that time.