THE KAGAN CHRONICLES

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  Reagan also had a failure with Douglas Ginsberg, whose name was withdrawn, after he confessed to having smoked some dope back in his student days.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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CAN WE PLEASE DISCUSS TAX POLICY? IF NOT NOW, WHEN?

Public discourse on American tax policy, as we generally hear it, usually begins with the election of President Reagan in  1980.  The discussion, if it develops at all,  proceeds through a garbled debate about the effects of the tax changes during his two terms in office, slides quickly through the Bush I tax increases, drifts to the Clinton tax increases on the wealthy, and finally settles on Bush II’s tax cuts set to expire on December 31, 2010.  This discourse usually does not take too long.  Despite the many nuances and actual effects of this 30 year history, most of the discussion, both public and private, ultimately gets distilled into 2 crude summaries, as follows:

Republicans:  “Tax cuts are good.  With less revenue to wastefully spend, the beast of government is starved, and its unnecessary spending is reduced.  Further, all citizens, with their tax burdens reduced, are more productive and have more money to invest, save, and spend.  As a result, there is greater prosperity for all.”

Democrats:  “Tax increases or decreases are, of themselves, neither good nor bad.  The amount of taxes that the government must collect depends upon the various needs of its citizenry and general economic conditions of the country.   The weight of any necessary tax burden and upon which groups of people it falls, nonetheless,  should be fair and equitable.”

I am not trying here to make short shrift of either the Republican or Democratic official positions, if there indeed are such things.  I am simply trying to distill the mantras that are repeated ad nauseum by political pundits, commentators, policy wonks, and government policy makers   These chants have become not only tiresome but just plain insufferable.  What has resulted is that the public policy debate never seems to elevate itself beyond  these buzz phrases.  On the rare occasions when it does,  standard canned pieces of innuendo usually follow.  However, there is a definite reason for this:  the art of political persuasion does not require more.

Both political parties have known for a long time that tax policy is not something that people want to spend time listening to or discussing at any length.  The subject of taxes is usually a topic that people enjoy complaining about, but there is not too much tolerance for in-depth or at-length reasoning.  Quite frankly, for most  people,  tax topics are immensely boring.    Glassy eyes develop quickly on the particulars.  Politicians know this and use it effectively in the choice of their rhetoric.

Paul Krugman has correctly pointed to this when referring to Republicans as “tax-cut zombies.”  Say the word taxes in connection with almost any assertion to a Republican, and “cut taxes” is the instant push-button response.  Of course, whether or not the “cut-taxes” response is a logical fallacy with respect to the statement being asserted is irrelevant to the discussion.  Depending on the assertion being made, “cut taxes” may indeed be a logical argument.  But the underlying logic of any argument  is never penetrated when the first response is always so quick, so pre-packaged, and so seemingly rigid.  No matter, the Republicans know that a quick and dirty tax-cut blurb is what people like to hear. 

The Democrats, on the other hand, while not having had the complete tax-cut brain transplant, have managed to produce their own form of Zombi-ism.  They don’t assert “tax cuts;” they simply don’t assert anything.  They have learned to literally stampede away from the discussion of tax policy.   However, when pressed, most Democrats will spit forth some version “right now, we probably need to wait and see,” or, “a tax cut may be in the future, but not right now,” or “we’re going to do what the American people expect us to do.”  They may expand their comments to say that more careful study needs to be made, but that is about the extent of it.   All and all, there is little substance from the Democrats –  hollow rhetoric, at best;  sophistry, at worst.

I suppose some of what is described above is a result of our “sound-bite” media.  Say it quick, say it loud, and say it more times than your opponent.  Make it like advertising – say it, write it, and promote it a million times.  Eventually, like a soporific, it will first numb the senses, then induce a stupor.

I just hope that we awaken sooner rather than later.

Published in: on March 11, 2010 at 12:04 am  Leave a Comment  
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