The Other McCain

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Is The Left Fretting The Kagan Confirmation?

Posted on | July 4, 2010 | 2 Comments

by Smitty

Update: See below, for Stanley Kutler playing a favorite old card.

Let’s review Mark Greenbaum at Salon, and see what our purported post-term-of-the-week overlords might be saying on closed JournoLists. Summary: the fret level doesn’t seem too elevated, but the article has some nice digs, in any case.

Members of Congress are rarely at a loss for ways to make themselves and their institution look foolish. But, as we were reminded last week, there is no more embarrassing spectacle than a Senate Judiciary Committee hearing for a Supreme Court nomination. If the three days of questioning that Elena Kagan endured proved anything, it’s that these sessions have outlived their usefulness.

OK, both the institution the advice-and-consent language, and, by inference, the filibuster are an unfair curb on tyranny. They are, at best, useful in a Republican administration only, apparently.

This is not a novel argument. Since 1987, when Robert Bork failed to gain confirmation in large part because he was too candid in expressing his views, nominees have become completely closed in discussing their opinions. After Bork, White House teams decided they could gain nothing from tapping individuals who might invite a hint of controversy. The result has been a stream of milquetoast, clam-mouthed nominees and, minus the Clarence Thomas saga, completely unmemorable hearings.

Constitutions don’t kill nominations; people like Ted Kennedy kill nominations. However, this appeal to removing safeguards from tyranny can be improved by appealy to blatantly unjust uses of confirmation hearings.

This week’s experience may have been the least noteworthy of all, as Kagan herself is the perfect representation of the emptiness of the current process. With absolutely no written or spoken record on seemingly any issue of significance, the shrewd careerist is the blankest of blank slates. The prevailing assumption was that little that would be gained by her hearings and, as it turned out, absolutely nothing that will affect her chances of confirmation was said. She will sail through the full Senate, something that was never really in doubt. As with most legislative matters these days, nearly every senator knew how he or she would vote on the nomination moments after it was announced.

Since the unjust use of a confirmation hearing against Robert Bork has meant that a useful Constitutional feature has been denigrated, we can now remove that feature. Call it the Gradual Scuttle Doctrine. Note the willingness to alter Constitutional procedure without amendment. Article 5 has been quite an impediment to Progress.

Consequently, neither side acquitted itself well during the hearings. Frustrated by the inevitability of Kagan’s approval, Republicans resorted to harsh questioning that evoked memories of Democrats’ treatment of John Roberts and Samuel Alito — two Republican nominees who the Democrats were powerless to derail. But the GOP’s tactics were more severe. The Judiciary Committee’s Republican members were actually reduced to shamelessly bashing civil rights pioneer Thurgood Marshall, whom Kagan clerked for, and focusing on Kagan’s position military recruitment on Harvard’s campus when she was the university law school dean. The ROTC issue, of course, had little connection to Kagan’s judicial temperament. It was a pathetic display.

This article can have a fig leaf of fairness by talking about ‘neither side acquitt[ing] itself well’. Then we lead into making Kagan’s nomination seem inevitable. Juxtapose her with some serious legal talent like Roberts and Alito. Declare one of the chief arguments against her confirmation ‘ha[ving] little connection’ to her judicial temperament. Grade the Republicans ‘pathetic’.

Sadly, Democrats were little better, throwing Kagan softball after softball, content to ease her through to a safe floor vote without pressing her on anything. The low point of the hearings may have come when Sen. Amy Klobuchar of Minnesota asked Kagan about her affinity for the characters in the vampire movie “Twilight.” Klobuchar’s cringe-inducing questioning was reminiscent of Joe Biden’s hectoring of Alito during his hearing in 2006, when Biden ranted against Alito’s alma mater, Princeton, inanely donning a baseball cap to make his point.

Attack a Democrat. Has she gaffed lately?

For her part, Kagan played the role she undoubtedly rehearsed with her White House handlers, pioneering innovative ways to say nothing by uttering something. Despite once writing that Supreme Court nominees should be candid in their Senate testimony, Kagan did precisely the opposite. Her cynical approach was a perfect fit for what these proceedings have become: pointless charades.

This is sublime! Blame the proceedings themselves for Kagan’s swan dive into the Potomac River of hypocrisy! Why should Elena Kagan, on the cusp of admission into an elect group charged with interpreting the Constitution, follow her own published opinion? All of that Joan of Harvard stuff is for kids. Given the opportunity to show some moxy, the first rule of political moxy is that you talk about political moxy, while showing none.

Naturally, the best thing to do would be to abolish all confirmation hearings and ask nominees to fill out simple written questionnaires. This actually happens already, before the hearings start. But alone, it would be more than sufficient, given that senators generally know how they will vote early on. This wouldn’t force nominees to be as candid as Bork, but frankly, there’s no way to push a nominee to answer difficult questions — especially when the nominees are brilliant lawyers who have made a career by fashioning evasive responses.

Asking the Senate not to showboat whenever possible, Mr. Greenbaum, would be like requiring Elena Kagan to show some political moxy. But this is a good distraction from the question: does Kagan merit appointment to SCOTUS?

Both parties could also agree that, barring extraordinary circumstances, all of a president’s nominees should be sent to the floor. This would expand on the famous 2005 deal carved out by the “Gang of 14,” which ended a long fight over a handful of blocked Bush appellate court nominees, acknowledging once and for all that with judicial nominations, elections have consequences.

So, we can admit en passant that the Democrats are the real choke point here. The question remains: should Kagan be approved? No. A broader question beckons: does this administration constitute ‘extraordinary circumstances’, under which none of the president’s nominees should be sent to the floor? I’ll go yes on that. I daresay the crisis administration is so odious that the Senate Republicans should just call a four month time out, until a more representative Congress can be sworn in.

Ultimately, this might be the biggest underlying issue. Both parties have come to use the confirmations process to stymie the other party’s nominees. This ignores the will of the voters and politicizes the judicial branch of government, which is meant to be free of partisanship. For most of the country’s history, judicial nominees were approved with little controversy. Democrats and Republicans should find a way to return to this arrangement, and could well start by dissolving the public nomination process.

Oh, here is a rich one, to declare the SCOTUS un-politicized and the Kagan nomination as representing the will of the voters. In propaganda mode, though, it is crucial to claim the opposite of any inconvenient fact.

Not that our senators will ever do this. There are few better ways for them to get the national exposure they crave than by sitting on the dais of an overflowing hearing room and playing to the cameras. More important, the judicial wars remain an important issue for the Republican base, and given the party’s rightward movement, elected GOP officials don’t want to give up an easy opportunity to connect with their base.

OK, admit that the notion of dispensing with Constitutional process was a feint to get a reader (I bit). Using confirmation hearings to slam Republicans and their base is an unexpected, elitist twist. We can be sure the Democrats would never, ever do something so crass, except for when they do, which is every time.

So even though last week’s hollow spectacle is behind us, another one just like it is already on the horizon.

Anyone who thinks defending the Constitution from the crypto-Marxists who have been slowly, methodically crushing it since Wilson is a ‘hollow spectacle’ merits a one-way ticket to Venezuela.

Overall, this piece doesn’t reveal a very high fear factor on the Left. Perhaps they’ve already shopped enough GOP support.

Update: Stanley Kutler comes through in a big way over at the Puffington Host, getting raaaaacism right out there in the lede:

Elena Kagan’s confirmation is likely if no other reason than the emptiness of the Republican case against here. Her hearing had, in her own well-chosen words, “an air of vacuity and farce.” Nevertheless, the Republicans scored electoral points and solidified their appeal to those whose hostility toward President Barack Obama is rooted in racial basis.

This was an interesting tangent, as well:

Kagan appeared with impeccable credentials, and with smarts and savvy for running essentially a seminar with the senators. Robert Bork foolishly tried to take the lecture senators as if he were in a classroom, but only succeeded in alienating them. Kagan not only demonstrated a learned and supple mind, she showed herself to be a very human, warm individual, with a sense of humor that provided a few spontaneous moments.

So, why the Republican hostility? Their not-so-subtle uses of the Marshall analogy amounted to stump speeches for the electorate back home. The senators well know their constituents’ hostility toward President Obama has powerful racial overtones that fuel the public anger so calculated for the evening television news. The Thurgood Marshall references amounted to a purposeful, well-orchestrated strategy to fire up the “base.”

I hope to meet Bork in person one day and ask if the narrative mixes cart and horse. I’m curious if he knew the handwriting was on the wall, that he was set to receive some serious character assassination, and didn’t just choose to go down in a blaze of glory.


2 Responses to “Is The Left Fretting The Kagan Confirmation?”

  1. mojo
    July 5th, 2010 @ 10:11 pm

    In an honest world (yeah, right), the ABA would have issues a “Fucking Unqualified” assessment.

  2. mojo
    July 5th, 2010 @ 6:11 pm

    In an honest world (yeah, right), the ABA would have issues a “Fucking Unqualified” assessment.