Kagan hearings begin in earnest

Yesterday, the Senate Judiciary Committee chaired by the far-left Pat Leahy of Vermont and with Senator Jeff Sessions (R-AL) as its ranking Republican, opened the hearings on confirmation of Supreme Court nominee Elena Kagan.  Each of the 19 committee members gave a 10 minute opening speech, followed by speeches of introduction by the two Senators from Kagan's home state of Massachusetts (heaps of praise by John Kerry for Kagan's ability to forge compromises and bring fresh ideas to a legislative process, and more cautious words by Scott Brown.)  Kagan then gave her own opening remarks -- which were not very remarkable -- before Leahy adjourned the session until 9 AM Eastern Time on Tuesday.

Within the little-known world of people who think about judicial confirmations, Kagan is well known for saying that the Bork hearings served to emphasize, post-Bork, how little we learn about Supreme Court nominees before votes are taken on them.

Senate Republicans who are clearly worried about this woman's judicial philosophy, which even Democrat Senator Herb Kohl of Wisconsin said was "invisible", will push hard, asking Kagan about a few things in particular.  Those should include why she banned the military from recruiting on Harvard Law School's campus in clear violation of the law and why she posited that decisions about free speech should include some sort of balancing test regarding the "societal cost" of that speech, a view which Chief Justice Roberts called "startling and dangerous."

Some Republicans and Fox News talking heads seem to be buying into the possibility that Kagan could move the court marginally to the right as she would be replacing the Court's "most liberal" member.  I'm throwing the BS flag on that one.  Kagan's background is as a liberal activist, even having worked on the doomed Dukakis presidential campaign.  She's a smart female (and probably gay) version of Barack Obama.  I have no doubt that any difference in "liberalism" between Kagan and Stevens or Ginsburg will be imperceptibly small.

While there has been a little talk of a Republican filibuster of Kagan, the odds of that happening strike me as less than 10%.  True, ending a filibuster would be slightly harder for the Dems with the death of Robert Byrd, but that spot will likely be filled with another Democrat soon -- sooner if they need it for this vote.

Elections have consequences.  I've written many times that one of the perks of winning the presidency is that you get to choose Supreme Court judges; that right must be respected and a judge should not be turned down simply because he or she seems a little too liberal or a little too conservative for whichever group has a Senate majority at the time.

However, I believe Senators have an obligation under Advice and Consent to block judges whom they believe will be unable to uphold the Justices' oaths of office, not least to protect and defend the constitution.  Kagan's statement about balancing free speech against "societal cost" strikes me as just such a disqualifying statement and I hope someone grills her about it.

In the end, perhaps Republicans, especially those on the Senate Judiciary Committee, should save a little political capital and offer to let Kagan through without a filibuster if the Committee's Democrats will strongly consider not approving Barack Obama's nominee to fill a vacancy on the Second Circuit Court of Appeals, Robert Chatigny, a man who appears to have a soft spot in his heart for rapists and sexual predators.  Perhaps at least Chatigny can be stopped.

From what I know of Kagan today, I'd say a filibuster would be warranted, but given the long odds of keeping all Republicans on board, I think Kagan will instead be approved, perhaps by the narrowest vote in Supreme Court confirmation history.  (Sonia Sotomayor passed the Senate by a 68-31 vote.)

I would also like to comment briefly on Senator Kerry's remarks.  He emphasized as a positive for Kagan her ability to come up with a new approach, a fresh idea, in trying to get Republicans and Democrats to reach a compromise.  And while that's an extremely valuable skill in most circumstances, its importance is much less when it comes to judging. Indeed, it's easy to imagine that trait being a negative.  Judging involves ruling on the basis of existing law and (for many judges, though perhaps not as many as I'd like) on the basis of original intent.  It's very hard to bring a "new idea" to an old idea without creating what is fundamentally a new idea, such as balancing the "societal costs" of free speech.  The more Kagan talks about trying to forge compromise, the more I fear she will be a destructive force against our constitution, trying to peel off occasionally-weak "conservatives" like Anthony Kennedy with fashionable feel-good "can't we all just work together?" arguments.

Despite Kagan's calls for nominees to be more forthcoming in front of the Senate committee, it would be a foolish strategery for her to live by that counsel.  She will likely, like Sotomayor and most others, take up a lot of time with pretty words signifying nothing in particular.  We will end the hearings knowing little more than we know now.  And one liberal will be replaced by another, another who is perhaps even more dangerous than Stevens when it comes to protecting and defending the Constitution, something I hardly thought possible just two years ago.

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