Tuesday, June 29, 2010

Kagan Hearings Are A Farce, She Said, Until She Was Nominated

 In a 1995 book review, Elena Kagan wrote that the Supreme Court confirmation hearings were an "air of vacuity and farce."

Now that Kagan is the nominee, she changed her mind and now agrees the lifetime appointees should remain mum if questions from senators “have some bearing on a case that might some day come before the Court.”

Her epiphany came, she testified Tuesday, when Republican Sen. Orrin Hatch of Utah took her aside and urged caution in her testimony.

Furthermore, she testified she would not discuss past Supreme Court decisions. 

This proves the obvious. Why hold the hearings? It's a dog and pony show.

Instead, we are spoonfed garbage from Republican senators that Kagan's mentor Justice Thurgood Marshall was some liberal freak activist who supposedly once said make a decision and let the law catch up with it. The man has been dead 17 years.

And Democratic members on the Judiciary Committee lambaste the current Chief Justice John Roberts court as conservative activists. In case you haven't heard, activist is a dirty word in political parlance addressing the courts.

These decisions, Kagan responded, are what they are. Brilliant. And a rose is a rose is a rose.

The fact is less than 20% of Americans have ever heard of Kagan, the Obama administration's Solicitor General, and my guess is that less than 1% can name all nine current justices of the high court and that same 20% could not name the justice she is replacing.

Yet, we must endure more days of hearings and unless an illegal housekeeper or an Anita Hill incident is surprisingly sprung, the chances of the full Senate confirming Kagan are
a slam dunk.

I rarely rue for the old days but it wasn't until the middle of the last century that the Senate hold hearings because it infringed on the integrity of the Judicial branch of government. Newsweek:

“For most of American history, the Senate considered Supreme Court nominees without soliciting [the nominees’] input,” wrote Benjamin Wittes, of the Brookings Institution, in his 2006 book, "Confirmation Wars."  Politicians considered it an intolerable affront to judicial independence to ask a nominee how he would vote on a matter; to answer any such question was unthinkable.
It was not until the high court’s epochal decision desegregating public schools, in 1954, that senators began to be emboldened to press nominees by asking directly or indirectly about what they would do if confirmed. It was an effort to exert some influence on a judiciary that--since Brown v. Board of Education--has assumed a far more commanding role in setting national policies via interpretation of the Constitution. 

The 1987 Reagan nomination of Robert Bork killed by the Democrats is my time line for the extreme partisanship. Ever since Bork, both parties and their special interest backers have one upped each other and turned the nomination process into a Roman gladiator spectacle.

I could care less Kagan is charming when she handles questions such as this as reported in the New York Times.

But the hearing placed an early emphasis on more abstract issues like Kagan’s judicial philosophy about constitutional change. (Sen.Patrick) Leahy (D-Vermont) asked her to expound on how the Constitution had been amended, and she plunged into a kind of Civics 101 discourse on the framers, drawing a contrast between clear-cut provisions like the one that requires senators to be at least 30 years old, and other more general provisions, like the Fourth Amendment’s prohibition of unreasonable searches and seizures.
“Those provisions,” she said, “are meant to be interpreted over time.” 


I loved Newsweek's description:

Within a couple of hours after Supreme Court nominee Kagan began her long-awaited question-and-answer session with the Senate Judiciary Committee on Tuesday morning, most of the 19 committee members had left the chamber for much of the time. The spectator gallery was far from full—especially after Sen. Herb Kohl, a Wisconsin Democrat, dispatched people to the exits by announcing: “Let’s talk about antitrust.”

Republican Sen. Tom Coburn of Oklahoma is fast becoming a favorite of mine for telling it as it is.

"Why should we have this dance if we're not going to find out real answers about real issues about what you really believe?"

Coburn is the guy in the MSNBC promos for its morning show with former congressman Joe Scarborough. Standing  on the Senate building steps being told of Congress's disapproval rating, Coburn said Congress stinks and questions the sanity of those 23% who think they are doing a good job.

I place the court confirmation process as it now exists in the same category of the president pardoning some stupid turkey on Thanksgiving Eve.

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