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Obama Nominates Solicitor
General Kagan to Replace Stevens
on Supreme Court
By Dave Andrusko Part Two brings you up to date on a request from National Right to Life. Part Three is a powerful op-ed about ObamaCare and Planned Parenthood. Please be sure to also read "National Right to Life News Today" (www.nationalrighttolifenewstoday.org) and please send your thoughts and comments to daveandrusko@gmail.com. Pro-abortion President Barack Obama this morning nominated Solicitor General Elena Kagan to replace retiring pro-abortion Supreme Court Justice John Paul Stevens. The 50-year-old Kagan, formerly the dean of the Harvard Law School, has never served on the bench. Her selection fulfills Obama's pledge to reach outside the federal judiciary for a nominee. If confirmed, Kagan would be the first justice without judicial experience in almost 40 years. According to the Associated Press, "Obama has started making calls to Senate leaders to inform them of his choice, while his White House team is launching a broad campaign-style outreach to Capitol Hill and the media. That effort is designed to shape the national image of Kagan, an unknown figure to much of America."
Democratic Presidents had gone 15 years without the chance to appoint a Supreme Court Justice. Obama now has a second opportunity in just 16 months. Justice Sonia Sotomayor was his first selection made in 2009. Kagan's meteoric rise is reminiscent of Obama's ascension from Illinois state Senator to President. Kagan has published almost nothing, had only two years of private law practice, and been Solicitor General for only a year. Her resume includes teaching at the University of Chicago, working as an associate counsel to President Clinton, and teaching at Harvard Law School before becoming its first female dean just two years after winning tenure. If Kagan is confirmed, it would mean that the High Court has three female justices for the first time. Although a number of names had surfaced since Stevens announced his retirement, Kagan's name was always at or near the top. Tom Goldstein, founder of the influential SCOTUS Blog, wrote February 23 that Kagan "deserves the title 'prohibitive front runner.'" Senate Minority Leader Mitch McConnell (R-Ky.) said, "She has been nominated for a lifetime appointment on the nation's highest court, and we will carefully review her brief litigation experience, as well as her judgment and her career in academia."
Given that inexperience and the
dearth of publishing, senators
will likely question Kagan
closely. Writing at
NationalReview.com, Ed Whelan
noted that Kagan has already
described how the confirmation
process ought to proceed. (The
following comes from
http://bench.nationalreview.com/post/?q=MjY5YTkxYTg5ZTNkZWM4MWI3NWFmNDhhZTdjMGI2MDI=
under the headline "The Kagan
Standard on the Supreme Court
Confirmation Process" and
appeared just prior to Obama's
nomination of Kagan.) Given the possibility that President Obama will nominate Solicitor General Elena Kagan to the Supreme Court, it's worth highlighting that Kagan has set forth in writing her carefully considered views on how the Supreme Court confirmation process ought to proceed. Those views were formed in part from her service as special counsel to the Senate Judiciary Committee in connection with Justice Ginsburg's nomination. Here are quotes (italics added) from Kagan's 1995 book review of Stephen L. Carter's The Confirmation Mess, which she published in the University of Chicago Law Review ("Confirmation Messes, Old and New," 62 U. Chi. L. Rev. 919 (1995)): If recent hearings [on the nominations of Justice Ginsburg and Justice Breyer] lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee's legal views, but that it did so far too little.… When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. [p. 920] I suspect that both [Ginsburg and Breyer] appreciated that, for them (as for most), the safest and surest route to the prize [of confirmation] lay in alternating platitudinous statement and judicial silence. Who would have done anything different, in the absence of pressure from members of Congress? [p. 928] The kind of inquiry that would contribute most to understanding and evaluating a nomination is … discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues.… But responses to … questions [on judicial philosophy] can--and have--become platitudinous, especially given the interrogators' scant familiarity with jurisprudential matters.… Hence the second aspect of the inquiry: the insistence on seeing how theory works in practice by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces. [pp. 935-936] [As for claims that such inquiry would compromise "judicial independence":] The judicial independence that we should focus on protecting resides primarily in the inability of political officials, once having placed a person on the court, to interfere with what she does there. That seems a fair amount of independence for any branch of government. [pp. 938-939] [W]hat is worse even than the hearings themselves is … the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate. [p. 941] |
