The Kagan Hearings: The Right Thing For Republicans To Do

There is not one chance in a thousand that they will do it, of course. But Senate Republicans can do much good for the country, the political culture, and, in the long term, themselves, if they would undertake a courageous, principled and ethical act: confirming Elena Kagan to the Supreme Court, after establishing her qualifications to serve, by an overwhelming if not unanimous vote.

Kagan is qualified. No less than a Conservative icon than Justice Scalia has endorsed the concept of putting a non-judge on the Supreme Court, and for a non-judge, Kagan is as qualified as any reasonable person could want. She was a Supreme Court justice’s clerk (Thurgood Marshall), meaning that she has already participated in the writing of Supreme Court opinions. As Solicitor General, Kagan has prepared briefs for and argued dozens of Supreme Court cases. She has had a long and successful career in the law; she is obviously up to the task intellectually. Though some of her opponents will disingenuously argue otherwise, there can be no legitimate argument (if one accepts that a non-judge can be qualified for the job) that Kagan isn’t up to the job.

The Republicans plan to challenge her, rather, on the basis of her ideology and likely leftward tilt, and subject her to the hostile inquisitional questioning and antagonistic speeches that has characterized Senate confirmation hearings of Justices since 1987, when Democrats, led by the late Sen. Ted Kennedy, denigrated the character and misrepresented the judicial positions of Reagan nominee Robert Bork and sent his nomination to defeat on the basis of ideology alone. The hearings featured one of the most outrageous instances of political slander in U.S. history, when Kennedy thundered that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy…” Virtually all those who argued before Bork as a judge or who worked with him regarded his as a spectacularly adept legal mind and a scrupulously fair judge who was not only well-qualified, but a good bet to become one of the most influential and powerful voices in the history of the Court. Under the standards of review that had been in place through the middle of the 20th Century, this would have guaranteed Bork’s confirmation with minimum opposition. During the tumultuous times of the 1960’s, however, liberals on the Senate began establishing a new approach to nominations in order to protect the progressive legacy of the ground-breaking Warren Court, which de-segregated the schools,  protected the rights of the accused, elevated the First Amendment, and partitioned Church and State as never before.  Starting with the nominees of President Johnson, Supreme Court confirmation hearings began to be less about qualifications and more about politics. The Bork hearings escalated the ideological warfare to toxic levels, and Bork became the last nominee to answer the questioning of the Senators fully and honestly, realizing too late that it wasn’t the quality of his legal reasoning and scholarship that mattered to them, but his conclusions.

Since Bork’s defeat, the confirmation hearings have become show trials. The nominees are faced from the start with no-win options of honestly responding to questions and getting “Borked” as a result, or lying, thereby failing to uphold the very integrity and honesty that is required of a judge. The tenor of the hearings have contributed to the toxic hyper-partisanship of Washington that has made the government increasingly dysfunctional, as Democrats and Republicans alike have sought to “give it to them like they gave it to us,” and used the hearings to grandstand to their most extreme supporters. Senate Republicans are expected to attack Kagan on the basis of a politically-charged decision she made as Dean of Harvard Law School that, truth be told, has very little relevance to her qualifications for the Supreme Court, and the positions she took as Solicitor General, which is just legally ignorant: a lawyer represents the views of  her client, which are not necessarily her own.

The Senate is not giving up its Constitutional function to “advise and consent” if it simply establishes that a nominee is qualified and has nothing in her past that indicate that they are corrupt, bigoted, or otherwise untrustworthy.  Presidents will obviously appoint the justices who they feel are philosophically sympathetic with their own views; that should not be the basis for challenging the legitimacy of  nominees. Political hit jobs, like Anita Hill’s despicable ambush of Clarence Thomas with old and unprovable allegations of sexual harassment, should be deplored and condemned, and each political party should display respect and deference to the choice of the other party’s President, knowing that their own chance will come, and that their President’s choice will be treated with due respect too.

The Senate Republicans can lay the foundation of such a process, the way it used to be, and forfiet nothing but the cheers of the Angry Right. Kagan is going to be confirmed. Forcing her to obfuscate, attacking her character, and voting against her in droves will only ensure that a vicious cycle continues and, it should be mentioned, will reduce any potential she might have to be sympathetic to Republican arguments after she joins the Court. Confirming Kagan as an explicit demonstration of respect for her and President Obama’s—or any President’s—right to choose whatever qualified candidate he wants can help moderate the unhealthy ideological warfare in America that is generating only discord, deadlock and chaos.

A strong Republican vote for Elena Kagan would be a vote for mutual respect, cooperation, open-mindedness, civility, compromise and fairness. It’s the right thing to do. It is obviously the right thing to do.

What does it say about our government that there is absolutely no chance it will happen?

12 thoughts on “The Kagan Hearings: The Right Thing For Republicans To Do

  1. Can you comment on excerpt from this article:

    [Published this morning at, are links to 2006 and 2008 articles from the Harvard Crimson newspaper, proving Elena Kagan teamed up with the Lambda “Trans-gender Task Force” as Harvard Law Dean overseeing the administrative team that forced Blue-Cross, Blue-Shield to provide sex-change operations as a paid benefit, including breast enhancement or breast-removal for students or faculty who suffer from “gender identity disorder.” The partial sex-change operations must be fully covered by insurance premiums, as Kagan’s administrators demanded they be funded as an “equal right.”

    “Prior to the modification, Harvard subscribed to a standard plan from Blue Cross that specifically excluded ‘services and supplies that are related to sex change surgery or to the reversal of a sex change,'” reported the Harvard Crimson.

    The September 2008 Harvard Crimson reported Lambda had “begun conversations with the law school administration [i.e., Elena Kagan] to make our restrooms safe and accessible for people regardless of their gender identity or expression.

    Kagan spoke several times at pro-homosexual banquets, and personally said ‘I am committed to working with Lambda and others . . . on making progress for the elimination of discriminatory policies” not only in the military, but now apparently by any business that labels “Men” or “Women” on the restrooms, and by Blue-Cross, Blue-Shield, who had previously excluded sex-change operations.

    How would Elena Kagan rule on bills like “E.N.D.A.” which Congressman Barney Frank (D-MA) is trying to push through Congress, forcing women and girls nationwide to share public restrooms with cross-dressing men?

    Can a sitting justice, potentially engaged in the homosexual lifestyle, be trusted to rule on cases that might well grant special preferred government status to some – including that very justice – while, at the same time, eliminating certain free-speech and religious-liberties rights enjoyed by others? (i.e., hate-crimes laws; the Employment Non-Discrimination Act; constitutionality of the Defense of Marriage Act; constitutionality of “don’t ask don’t tell,” etc.)Whether or not Elena Kagan self-identifies as a lesbian, she has proven herself a radical anti-military, pro-homosexual ideologue and activist. There’s little doubt that she would take this activism with her to the high court… ]

    Ultimately, what is considered activism by some is constitutional defense by others. Should this background be considered in the vetting of a Supreme Court justice nominee?

    • In a word, no. Sexual orientation (or gender generally) should never be presumed to be a bias, one way or the other. Not that it matters, but Kagan says she’s not gay, which closes the book for me. You can’t be an administrator at Harvard these days w/o toeing the mark regarding gay and transgendered rights.

      Everything I’ve read about Kagan indicates that far from being the far left ideologue she’s being made out to be, she is really Zelig, and the best candidate to be a reverse Souter or Blackmun that the GOP is likely to get. If they don’t offend her too much, they might get lucky. She goes with the flow.

      • I understand your point about being pragmatic in the process of judicial appointment, the “devil you know” in the here and now, vs. the unknown appointee who may be far worse. Nevertheless, I don’t think we know much at all about this “devil”, not impugning her as literally being such. Only lately have Clinton library documents about her tenure under Clinton been released, except for 200 pages that Clinton withheld. Hmm….. what’s there that the Senate should not be permitted to know?

        Regarding her own statement that she is not gay closing the book on the matter, I don’t believe I can agree. There is tremendous political pressure to NOT admit she is, and, on the other hand, tremendous potential for Constitutional law to be changed if she actually is. In the setting in which Obama’s standards for justices require a kind of “empathy” over a strict adherence to law and precedent, it is also dangerous. Beyond that, res ipse loquitur, and there is testimony from those that have known her in the past that has not been brought to light in the mainstream press to date.

        [In a combative FoxNews Radio interview with Alan Colmes last month, confirmed our report, saying “Kagan Gay Rumors Didn’t Start on the Right” and referenced pro-homosexual web-sites that claimed Kagan was Lesbian back in 2009, including Queerty, PinkNews, and Gawker. They brag about her, but why is the Obama Administration suddenly ashamed of Kagan’s sexual orientation? Why won’t the left wing media investigate? ]

        [CBS News reported that President Obama’s new Supreme Court nominee Elena Kagan will be the “first openly gay justice,” pleasing much of Obama’s liberal base. But after complaints by an anonymous White House staffer that parts of the report were not public, the CBS reporter updated the post to say “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.” The CBS report has now been pulled, after The Washington Post repeated the CBS report, and the White House denials, but criticized CBS policy, saying “most major news organizations have policies against ‘outing’ gays or reporting on the sex lives of public officials unless they are related to their public duties.” The sudden media blackout on the ‘taboo topic’ is ironic, since Kagan’s private sex life already has, and will directly impact her public Supreme Court decisions.]

        I don’t know about you, but this rings my “Ethics Alarm.”

        • I had a post about this in April.

          I know straight conservatives and and gay conservatives—actually the proportion of conservatives to liberals among my gay friends and acquaintances may be higher than among the straight ones. I just see no reason to assume every gay man or woman is incapable of being objective on issues that touch on that topic. Based on that observation and conclusion, I couldn’t care less what Kagan’s sexual orientation is, except that she has the right to keep it private.

          All the speculation is unfair, I think. If I were her, I’d conclude that I was getting more benefit from supporters who thought I was gay then negatives from opponents who thought I was gay. I’d bet dollars to donuts that she wouldn’t be the first gay Justice anyway. In any event, it certainly is way, way down the list of concerns.

  2. [Kagan’s views are emerging on a number of issues, including her praise of Obama’s regulatory czar Cass Sunstein when he joined the faculty at Harvard Law School in 2008. Kagan was Dean of the school at the time. She said of Sunstein: “Cass Sunstein is the preeminent legal scholar of our time – the most wide-ranging, the most prolific, the most cited, and the most influential.”

    But, what does Sunstein believe? He believes, among other things:

    “[A]lmost all gun control legislation is constitutionally fine. And if the Court is right, then fundamentalism does not justify the view that the Second Amendment protects an individual right to bear arms. ”

    – Cass Sunstein, writing in his book, “Radicals in Robes”

    “Animals should be permitted to bring suit, with human beings as their representatives …”

    – 2004 book Animal Rights: Current Debates and New Directions

    “A system of limitless individual choices, with respect to communications, is not necessarily
    in the interest of citizenship and

    -Cass Sunstein, arguing for a Fairness Doctrine for the Internet in his book, 2.0 (page 137).

    Kagan agrees with Sunstein that free speech should be suppressed if it is offensive to society or to the government. (Kagan, “Private Speech, Public Purpose: The Role Of Government Motive In First Amendment Doctrine,” 1996.)

    There is no more essential element of the Constitution than the preservation of the right to free speech, ESPECIALLY if it offensive to the government. And, if the government has no check on its power, no check on its potential for tyranny by the legitimate and peaceful armament of its citizens, there can be no lasting republic.

    • I take Kagan’s speech opinion, which really only extends the “crowded theater” standard to society generally, with a grain of salt. She should certainly be asked about it. It was 14 years ago, and meant to be thought-provoking. I think either view of the 2nd Amendment can be supported—it’s confusing. I don’t hold it against anyone that they take the militia argument. It’s arguable. The animal law suits? Debate fodder.

      I don’t think complimenting Sunstein in an academic setting should be taken as more than it is.

      • In the matter of freedom of speech, I agree with you that it is critical to determine her views, particularly in the setting of Joe Lieberman’s view that the President should be able to be “shut down” in the event of national emergency, whatever that may be interpreted to be at the time, and when the FCC is on record as being in favor of taxes on internet sources of adverse opinion in the “alternative media” and the proposal that official government views be provided as a condition of such licensure. Anything less than a vigorous repudiation of such nonsense would be disqualifying in my opinion. We do not need to be emulating China or the former (current?) Soviet Union in this regard.

        Comments in an academic setting I think remain relevant indeed, in the setting in which our nation is now being led by academics without (by and large) real-world experience in the businesses that they are so eager to regulate and nationalize. The unfortunate circumstance is that declaring complex and broad-sweeping laws on the basis of theory in an academic setting blinds one to the myriad of “unintended consequences” that become so obvious to those upon whom these laws are imposed, consequences that those with such experience are often familiar with or can predict.

  3. Relevant, but only if context is considered. Professors and academics generally are supposed to have provocative ideas, and are judged by different standards than policymakers. The law, by its nature, imposes considerable restraint on academic musings when real facts are involved.

    I do think the internet shut-off power is a necessary safety measure. It could be abused, but that would be political suicide. Presidents can declare martial law, too, but if they abuse the power, they might as well just impeach themselves.

    • On the first, restraint on academic musings imposed by law doesn’t restrain the “musing” nature of the person. Experience in the real world matters; having been required to make decisions and personally suffer the consequences (business or otherwise) is the essence of accountability that is often sorely lacking. e.g. if Obama had acted like he or his “business” owned the Gulf coast shores, he would have brought the Dutch supertankers in to avert the avertable catastrophe we will now see played out there and not bowed to union pressure on an ideological (or, cynically, “payback”) basis, and he would have suspended requirements for 99.9985% purity in processed oil-contaminated seawater to be returned to the Gulf. Perhaps we will see a pragmatic Justice Kagan; it’s the best we can hope for.

      On the matter of internet control, this rightly provokes a visceral response. Only with iPhone videos, Facebook and Twitter did we learn about the popular protest after Iranian “elections”. With martial law in the United States, there is no check on a tyrannical government that directs an abusive police state. After all, if a President truly imposes martial law, who’s going to be around to impeach him if those are powers of the executive not requiring ratification by a Congress? Any Congress? When Bush 43 asked for a declaration of war, more or less, on Iraq, the circumstances of 9/11 existed (or were created) to make it highly unpopular to oppose him. With Israeli saber-rattling (or nuke-rattling) in the Middle East, American warships on the way to the Persian Gulf, it’s not difficult to imagine a repeat scenario today.

      • I continue to believe that the political culture of America does not produce dictators, only people who suspect others of wanting to be dictators. The system more or less guarantees that those who are skilled in governing and leadership don’t have to over-reach, and those who have to over-reach aren’t skilled enough to do it effectively or in a way that will hold sufficient popular support. Obama’s in the latter category. Kagan is proof of his essential impotence. He could have appointed a liberal Scalia. Kagan is a high-grade Harriet Myers from the Left. A gift. Which is why being gracious and deferential has only an up-side.

  4. Dear Jack: I oppose the Kagan nomination as well. I also hope the Republicans do. The reasons are not only her lack of juristic qualifications, but her evident bent for putting radical ideology ahead of the Constitution. This does not automatically mean that the committee must “Bork” Miz Kagan (a la Big Teddy) in the process. I would certainly not support that. Nor, I maintain, would it be necessary to any degree. The simple truth is sufficient. As it should be, in any case.

    • I think she’s a weak nominee. But she’s going to be confirmed, so its a no-loss proposition to return some collegiality to the process by asking some basic questions and, assuming she doesn’t drop any bombshells, give Obama who he wants. End the cycle of payback, especially since there’s no good pragmatic reason not to: who remembers why Senators voted against SCOTUS nominees? Haul out all the guns, if you have to, when the balance on the Court is actually threatened. Kagan for Stevens is just a weak knee-jerk liberal Justice for a smart, thoughtful one. Bad trade, yes, but not catastrophic.

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