President Obama has appointed an eminently well-qualified nominee in Elena Kagan to be the next Justice on the United States Supreme Court.  It is a bit odd that she has had aspirations her entire life to become a member of the Supreme Court yet, for some reason, chose a career path where she has never actually been a judge.  One cannot help but wonder why her career has meandered in so many directions, but I am sure we will get an answer during the nomination hearing.  No doubt there will be many questions and musings on the matter.  At this point, I guess it would be better to stay curious and refrain from judgment.

The last 5 failed nominations to the Supreme Court were all made by Republican Presidents. Nixon had failures with Clement Haynsworth and Harold Carswell primarily because of the nominees’ tracks records with respect to civil and women’s rights.  Reagan had a notorious and somewhat unexpected  failure with Robert Bork for two reasons – his advocacy of constitutional originalism and his role as acting Attorney General in the firing of Archibald Cox in the Saturday Night Massacre.  Reagan also had a failure with Douglas Ginsberg, whose name was withdrawn, after he confessed to having smoked some dope back in his student days.  And, finally, George W. Bush had a failure with Harriet Miers when it was widely determined that, in addition to having never been a judge, she was simply unqualified for the position.

With media scrutiny so intense since the days of LBJ, one wonders why the vetting process for High Court nominees has been so poor.  One would naturally think that a Supreme Court nomination is an act that the Office of the President would want to spend some considerable time planning – for example, similar to national disaster relief contingency plans.  On the other hand, maybe that is exactly why it doesn’t work so well.   Judging from the national responses to 9/11, Katrina, New Orleans, and various other calamities, the Executive planning process has not worked so well there either.  On the other hand, maybe a nomination is a different planning animal entirely.  It could be that until the spotlight is truly on someone, you just never know what is going to happen – either from within or from beyond.

The advice and consent process that we have all come to be so familiar with, particularly since the Bork days, could best be described as an iterative and monotonous one and not purely a contentious one.  The process never seems to get re-scripted; it just seems to be re-played over and over.  The Senate Judiciary Committee questioning process itself has been honed to almost a precise formulaic set of questions – many probative, some just plain annoyingly unanswerable.  In the former group we can expect interrogatories on judicial activism, legislative power,  due process, the Establishment Clause, and federalism with respect to the Commerce Clause and the 14th amendment.  In the latter, we will hear probings about gay rights, abortion, campaign financing, and other constitutional issues likely to be confronted by the Court now or in the near-term.  Bottom line is that the nominee needs to be well-prepared in constitutional theory and case-law, show a calm and even judicial temperament, and show some signs of just being oneself  (but not overly so).

Luckily for this nominee, the Senate has been (and continues to be) overwhelmed by financial matters of immense proportion.   Having been through the throes of the financial meltdown, TARP, auto manufacturer bailouts, health care reform, and the synthetic derivative mess with Goldman Sachs and the investment banking bunch, the nomination process might be a welcome relief for the Senate to take a break to do something that it knows how to do.  To say that financial oversight has not been the strong suit of the United States Senate is not an understatement.  That has been fully confirmed during the recent hearings of the Senate Permanent Subcommittee on Investigations.  On the other hand, it could cut the other way for nominee Kagan.  Some of the Senate’s other political problems might roil over to her hearing.  Let’s hope that will not the case.

Just for fun, how about some predictions:

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15 CommentsLeave a comment

  1. That’s a funky article, Mr. Funk. 🙂

    Republicans will do everything they can to smear her, but she’ll get approved.

    • I don’t know about smear – maybe de-rail might be more accurate.

    • Republicans will not fight this one too hard. What they will do is to simply expose her inexperience. She will end up with a small minority of Republican support, but enough to pass her.

      • Clarence Thomas was 41 years old when appointed to the court – and less experienced than Kagan. Clarence Thomas was a strange, low-level pick, but he made it. Sad, actually.

  2. Ben Hoffman stated, “Republicans will do everything they can to smear her, but she’ll get approved.”

    The article states “The last 5 failed nominations to the Supreme Court were all made by Republican Presidents.”

    The phrase “to Bork” has entered the common lexicon when speaking about a Presidential nominee (especially a Judicial nominee).

    Does all this mean that Republicans smear and they fail, whereas Democrats smear and they succede?

  3. Not quite. The Democrats hammered Clarence Thomas pretty hard (he probably deserved it), but he was approved. He would not have been approved without the help of 11 Democrats who ultimately voted for his confirmation.

    Bork got fairly contentious at his hearing – maybe a little too ideologically driven for that moment. Unfortunately, that helped sink him – not his ideology alone. It did not help that he had previously proven himself to be a Nixon hack at precisely the wrong time.

  4. One interesting tidbit to learn about is her own personal sexuality. Rumors abound of Kagan being a lesbian. A homosexual can certainly serve on the Supreme Court of the US, however, what would be interesting is that IF she is, how much of an activitst she is in that arena and why this was intentionally flown under the radar. Was this a litmus-test for the administration for choosing a nominee? If so, why so hush-hush about it? simple answers, I know.

    • Do you think Souter and, possibly, Breyer, were flown under the radar? What difference does it really make? I’ll answer my own question by saying that it makes no difference whatsover.

  5. So now we have the Democrats version of
    Harriet Miers. I voted for Obama.
    But, I am not happy with this cronyism
    in choosing appointments and nominations.

    That we have so many of the same narrow thinkers
    from the Ivy league on the Court, in the Executive
    Branch and Congress speaks volumes for the failures
    of Congress, the Executive Branch, the financial system meltdown, the Wall Street-K Street crowd.

    A Law Professor?
    Harvard Law School Dean?
    Who Cares!

    Harvard Law School Dean was a crony appointment.
    It is like Managing the Yankees.
    One would have to be the most incompetent
    person in the country to screw that up
    what with the largest endowment in the country
    and handing out free lunch to a bunch of spoiled
    primma donna law professors.

    A low to mid range staffer for President Clinton?
    It is nice resume stuffing, but not a cabinet
    post or leadership role.

    Solitior General for 1 year and arguing her first
    legal cases ever in front of the US Supreme Court?

    Are we that desperate!!??

    What about that African American woman
    who was Chief Justice of the Georgia Supreme Court?

    She didn’t come to Washington or kiss enough tush??!!

    • First, I repeat that Kagan is highly qualified. She has been steeped in the study of law and the body politic her entire life. Second, Obama, as is his style, ultimately chose her as a consenus builder on the court. No one really assumes that it will work but, who knows, it just might. If it doesn’t work, Obama at least tried. Also, no one is really quite certain how much of liberal she really is. Sometimes, these nominations work in strange ways. Time will tell.

      • Consensus builder? Let the SCJs interpret the Constitution rather than holding hands and singing kumbaya

    • I agree with you, Mark. To say she is ‘highly qualified’ is laughable. My question is that if this is a diversionary nomination, then it isn’t working. Conservatives were prepared for someone with significant track record of legislating from the bench and they were arming for a fight. With this nominee, that ammunition is taken away. The debate will be ‘is she unqualified’ rather than ‘is she qualified’. This is a big difference in the questioning. If this WASN’T a diversionary submission, then what the heck was obama thinking?!

  6. Highly qualified to be appointed to the New York State Court, but not the US Supreme Court.

    I repeat, I voted for Obama.

    I Googled Harriet Myers and was surprised by
    what I found: first woman President of the
    Dallas Bar, first Woman President of the Texas Bar.
    A Partner in one of the top law firms in Texas.
    Yet, Miers was torpedoed for being too close to

    It looks like Miers resume was more substantial
    than Kagan’s resume. Kagan is close to Obama.

    This appointment is about “politics,connectons
    and paying back political favors”
    more than finding the best qualified person for
    the Court.

    Jennifer Granholm, first female Governor of Michigan (for 2 terms), first female State Attorney General of Michigan, US Attorney in Michigan would appear
    more qualified than Kagan.

    Janet Napolitano, Homeland Security Director,
    Governor of Arizona, Attorney General of Arizona,
    US Attorney for Arizona would seem more qualified
    than Kagan.

    Leah Ward Sears
    Traffic Court Judge(Georgia)
    Superior Court Judge(Georgia)
    Supreme Court Judge(Georgia)
    Chief Justice of Supreme Court(Georgia)

    Kagan may be “marginally qualified” because
    she went to Harvard and is part of the
    “old boys and old girls network”


    • I guess that we disagree on the relative qualifications of the individuals that you listed vs. Kagan. Kagan is a heavyweight (no pun) in her academic accomplishments, her national political work, her institutional work, and her work for 2 esteemed judges. She is a well-known voice, and people at all levels listen to her carefully because of her honesty and persuasiveness. She is hands-down about as qualified as one can be.

  7. OK, try this. You are a passenger about to leave on a flight and it is made known to you that your pilot has only ever worked in ground school and has never landed an actual airplane. Are you still interested in getting on board? Yep, you can study all you want – do you still want to take off? The sexuality item is a hidden driver I am sure. I do not find it a positive either.

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