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  Reagan also had a failure with Douglas Ginsberg, whose name was withdrawn, after he confessed to having smoked some dope back in his student days.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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Senator Durbin . . . Your Answer, Please?

In the fall of 2005, after the Senate Judiciary Committee had approved John Robert’s nomination to the Supreme Court by a vote of 13 to 5,  I became curious as to why the senior Senator from my State of Illinois had cast one of the “no” votes.  I decided to send a letter of inquiry to the Senator via his website to find out.  I was 55 years old at the time with this being my first letter to any elected official about any subject. 

I had watched a considerable part of the confirmation hearing and thought that Roberts had handled the process quite well.  It was fairly obvious that he was quite a conservative nominee, but I did not think that should matter much.  He was as qualified as anyone in the United States, even though he was fairly young for a Supreme Court nominee.    Somewhat naively, I believed that the vote for his approval, whether in committee or in the full Senate should be based on merit and temperament rather than political drift.   

 I carefully composed my letter and hit the “send” key.   I received a timely, well-written response from the Office of the Senator, and it was more than I had expected.  Although the letter had the readability and content of a plain-vanilla reply written for general purposes, it was quite thoughtful and seemed genuine.  Actually, I was pleased to have received any response at all.   Even though I suspected that the letter had been written by a junior staffer, it seemed to have been well-reasoned and, possibly, honed by the Senator himself prior to distribution.   All and all, I was satisfied with his response even though I thought his vote went the wrong way.  4  years later, I am not so sure.  Maybe I made a rookie mistake.  Who knows?  I suspect that it is too early to tell.

It took quite awhile before I wrote another letter.  I drafted the next one to Senator Durbin several months ago.  I don’t recall much of the specific language, but the gist of my letter centered around the Senator’s whereabouts in the health care debate.  I had read his statements on his website, but I was curious as to why his public profile on the topic was so low.    This was the period when Baucus and his gang of an indeterminate number ran the health care show (seems like eons ago, doesn’t it?).  Was Senator Durbin, as Majority Whip, staying out-of-the-way until final vote tally time, getting ready for the big-whip, or what?  Anyway, I thought that I might make a rather general inquiry as to his involvement in the process.

It was about 3 weeks later that I received a reply.  OK, a little tardy, but it was a response.   It was also, disappointingly, quite general and bland.  I remember thinking that it wasn’t much better than a grammatically correct high school term paper.  I gave it a grade of C+.  It would have been a B- had it been delivered a little more promptly.  The letter had not really delivered anything other than the most general of platitudes.  Disgusted with this response, I figured that I was done writing letters to my Senator – that is, until I read a short piece by the economist, Paul Krugman.

This is the piece that inspired me to write letter # 3 to Senator Durbin:  http://krugman.blogs.nytimes.com/2010/02/05/the-senate-becomes-a-polish-joke/

My letter of inquiry was fired off almost the instant that I had finished reading the Krugman article.  I wanted to know what Senator Durbin’s opinion was, if he had one, on the Krugman piece.  Was the Senate indeed becoming a joke where, like in 17th century Poland, any Senator could stand up and scream, “No,” and the whole process would come to a halt?  It seemed a fair enough question.  After all, this was a question from a liberal citizen from Springfield, Illinois, to a liberal Senator from Springfield, Illinois (I believe we even had the same barber in the 1970’s) about a piece written by a liberal economist?  This would just be three ordinary, middle-age guys comparing notes, right?  Wrong.

It’s been about 5 weeks now, and not a peep.  Maybe the interns are on break . . . . 

5 years – 3 letters – 2 replies – 1 still in draft form??

(Update May 12, 2010 : A full 2 months since my original inquiry and still no reply.  I think it’s safe to assume that I can stop waiting.  Not a bit surprised though.  I believe that I can safely infer that the Senator’s Office only replies to mail inquiries that are convenient or self-serving.)