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 Reagan also had a failure with Douglas Ginsberg, whose name was withdrawn, after he confessed to having smoked some dope back in his student days.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: