Elena Kagan Confirms Her Vacuity and Farce
Yesterday’s Judiciary Committee consideration of Obama Solicitor General nominee Elena Kagan proved that confirmation hearings are not totally useless. We knew that the selection to be the nation’s lead advocate to the Supreme Court had never in fact appeared before the Supreme Court, had shockingly little experience in front of significant courts of any kind, thought Bush apologist and cover artist Jack Goldsmith was a boffo hire to make at Harvard Law, thought the same of the Constitutionally malleable shill Cass Sunstein, and thinks it is just fine to detain people indefinitely without due process as "enemy combatants".
That is what we knew; yesterday we learned something new about Kagan before the SJC. She was for honest and open answers to Senator’s questions at confirmation hearings before she was against it. This oh so shocking revelation is documented courtesy of the Washington Post:
She once wrote that nominees should answer questions from senators.
And in no uncertain terms, either. Reviewing Stephen Carter’s book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."
She thought that executive branch nominees, "for whom ‘independence’ is no virtue," really deserved to be grilled.
Those statements apparently are no longer operative.
…
Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I [previously] suggested."
Isn’t that convenient. And a good thing to know about a woman roundly considered to be at the very top of Obama’s list of choices for future appointment to the Supreme Court. Now Kagan ducked and dodged on the ground that, as a nominee to be the Administration’s advocate, her opinions were not germane:
"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.
There is some merit to that position on the surface, but the problem I have is we have no ability whatsoever to gauge Kagan’s ability to dissect and understand difficult legal issues and relate the same on her feet in an adversarial setting. You know, the kind of skills she might be expected to need to serve as the Solicitor General for instance. This is especially disturbing in a nominee that is essentially a complete cipher with regard to to appellate and adversarial courtroom experience.
I wonder if she will be so honest about her refusal to be honest if up for confirmation to the Supremes? Bet on it. I guess we should just be thrilled that she is getting a hearing, for that is a process that has proved maddeningly slow, to the point of wondering if there is intentional delay, for David Ogden and Dawn Johnsen. On a positive note, word is that David Kris was voted out of SJC by voice vote Thursday and is up for the same at SSCI on Tuesday March 10th.
Well there are a lot of bad Bush era positions the Obama administration seems intent on pursuing…. Maybe it’s not such a bad thing the solicitor general has no prior supreme court litigation experience.
I owe you a Coke ; )
No coke before noon; beer only.
LOL ; ) Clearly, I failed to account for the time of day ; )
Obama’s appointments generally are very disturbing. Either his judgment is very bad, he is something other than what he has lead us to believe, or he is weak allowing his judgment to be swayed by others. Which ever it might be it is disturbing.
Meet the new boss. Same as the old boss…..
I have always thought appearances before the Senate for confirmation were essentially job interviews. I wonder what other organization on the planet would hire an evasive unresponsive person for a job aside from the Senate? The confirmation process has become a bad joke.
On the bright side though, given Obama’s position before the courts recently, it occurs to me that we could do worse than Kagan. If she has so little experience before the SC, perhaps she will be ineffective. That could prove to be a good thing…
Disgusting as he was, Ted Olson at least had experience when he took the job…
bmaz, I have a belated and OT question for you… If Shelby earmarked money for a company he owns, did he violate the law or just commit a huge ethical breach? I know that there are laws against bribery, but I don’t know if there is actually anything on the books, for something as egregious and direct as what Shelby may have done.
I have tried to learn the names of Elena Kagan’s parents. No luck.
Q: Does anyone know if she is related to Donald Kagan (CFR and /s/ PNAC); and his sons Robert W Kagan (CFR and /s/ PNAC) and Fred Kagan (same).
Elena’s wiki states she is Jewish. Donald Kagan, Jewish, was born 1932 in Lithiania; his son Robert W. Kagan was born 09/26/1958 in Greece.The son, Fred was born 1970, place unknown.
Can anyone learn more of Elena Kagan’s parentage?
Why Obama would want this person in this position, I’ve no clue. But a president is entitled to his own team and she meets the minimum requirements of the position.
Boxturtle (She’s a lawyer and she’s breathing)
bmaz,
You must be getting tired on that Walker “stake out”. Hope someone is getting you coffee!
Thanks for the post.
Don’t hold back, bmaz — tell us what you really think.
On the status of the other nominations, I’ve been looking in vain to find anything about when the full senate will take up Dawn Johnson. All I get is *crickets*. Anyone know anything about it?
Peter, I am not positive she is even really out of committee yet. She had an initial hearing that went smoothly, but when I checked could not find evidence of the committee voting on her. They just did so on Kris yesterday who had been considered initially at the same time as Johnsen. So I don’t know what they are doing.
Let’s face, she’s what Obama wants. Someone to schmooze with torture lawyers and be reassuring that she won’t rock boats. He’s picked people close to him for these slots, not necessarily people who were going to do a good job.
SO far, her legacy will be that she was a good fundraiser (which seems to be all Harvard is about anymore) and a nifty placement officer for torture lawyers in search of a berth. That’s her essence and that’s the essence Obama wanted for the slot. That’s actually the cream that rises at what they have left of DOJ.
15 – She and Kris just got out of committee.
http://legaltimes.typepad.com/…..ahead.html
By “she” I was referring to Dawn Johnsen, who is, as you see, curiously not mentioned as to status in said article.
You have to wonder if, now that he may be needing someone to argue his case, Yoo may want to see if “Supreme Court Favorite” Clement will make a cameo for him. He could start his oral argument by reprising his famous observations that “the United States does not torture, it does not do things like torture” and tack on “when it does, it calls it something else and sends the torture lawyers off to academia to teach the new definition to ivy leaguers.
19 – ah, sorry, misread that. I’m sure they will keep her out as long as they can.
I did see where Obama’s DOJ moved to dismiss one of their bad voter fraud cases that has been pushed by Schlozman. Interesting that they can actually motivate to try to dismiss their own filings when they want to – that is the one section that might get corrective surgery – the voting rights section.
Somewhat OT, but not entirely: John Dean has weighed in on the release of the Bush-era OLC memos. In addition to reaming John Yoo a new one, he offers this example of OLC work during the Nixon administration:
Kagan and her White House handlers are adopting what has passed for Beltway “wisdom” since the Clarence Thomas hearings. The Village’s take on that debacle was that answering questions was what made Thomas vulnerable. So Ms. Kagan prevaricates.
They never seemed to have considered it was Mr. Thomas’ past actions, his hypocrisies, his self-protecting terminological inexactitudes, his priorities, and his disdain for the public service and adoration he so desperately needs to compensate for his self-loathing. It is as if all White House handlers of Senate appointment positions are like Freud: they have universalized all human experience from of a handful of repressed and damaged people in their nation’s capital.
Ms. Kagan is not Clarence Thomas. She is following the Village game plan, a perfect example of Obama’s adopting what passes for the supposedly safe “middle” course in an era of profound and rapid change.
Among the differences a more confident or less triangulating administration would consider is that Ms. Kagan is not interviewing for a federal courtship. Expressing her opinions now will not compromise her obectivity should a similar case come before her as a judge.
She is interviewing for a job as a public employee, the US Government’s top legal advocate. Her employers would technically be the federal government. Main Streeters mistakenly believe that means she works for them. They have a right to know her opinions about what she would deem worthy of making a federal case out of, and what she would let fall by the wayside as if mustard seeds on stony ground.
At the risk of seeming repetative, “What Earl said!” See Podesta, Emanuel, and possibly Panetta in the distance. Fine bunch of vetters they are, (spit).
One of the academic lawblogs last week posted a comment from a ‘centrist’ who lauded Kagan’s Harvard experience as a qualification for the Solicitor General post, stating Harvard’s management is orders of magnitude more difficult than serving as SG.
On her hearing, I saw one summary of the conservatives’ questions, which looked like standard fare tricks, which I thought she evaded niftily.
On the political positives side, in 1999 the Republican controlled hearing committee refused to schedule Kagan for a hearing at all when she received the DC court nomination from then president Clinton. And, on the bar politics, which probably may be characterized fairly as ‘quaint’, I was pleased at TGoldstein’s having provided the requisite recommendation for her entry to the ScotusBar. TG is kindof a centrist, and works with StanfordLaw students, yet, in my opinion, has a more balanced view of justice than some of the pols who were senators questioning Kagan at her hearing last month.
well, you are WRONG about that
all you need to know is right there in front of you
and then she became a nominee herself
there is a word for portable principles like this
HYPOCRISY
so we KNOW that Elena Kagan is a despicable human being who has no moral fiber whatsoever
why would we want this piece of shit involved in our government in any way
Hey, you don’t get to just waltz in like that after leaving us defenseless in the face of the new troll “GOP” or “GregOPauls”. We set out something nice, warm and crunchy and there you were …. gone!
sorry, I’m tryin to reduce my innertoobz addiction (I forgot to pay the dialup bill again)
but I’m back now (let me at em, I’ll fight im with one hand tied behind my back, where’s e at, let me at im …)
so as long as you’re sure nobody else is gonna eat that … wouldn’t want to be rude (is anybody buyin that ???)
An example of the kind of subtle moderatism which I think would be the sort of advocacy Kagan would provide, is available in the lawprofs‘ amici brief in re FAIR v Rumsfeld, which case ended up being the CJJGRobertsJr foil for demonstrating a measure of Scotus unanimity which he has yet to replicate, as Fair went down in flames, although theirs was a noble blaze. Which is to say, I see Kagan’s realpolitik as favoring academic freedom rather than service to the Republican forces which seek to reverse civil rights gains in recent decades past, which the now-exBush administration sought to wreck.
what’s with the “edit” button thingy
y’all want me to edit me self ???
if I could do that we wouldn’t have this problem …
(wink)
footnote to @25, Kagan’s name appears on that amici brief alongside Heather Gerken, LTribe, DBarron; v.p.1.; Walter Dellinger’s outfit pled the case.
Meeting minimum job requirements won’t get you hired as a clerk at Borders or Starbucks. It ought not to be sufficient for employment requiring Senate confirmation. It’s what sometimes gets you an interview. Ms. Kagan flubbed her interview; I’d give her another one.
Mr. Obama’s job is like a stockbroker’s in that he’s only as good as his next trade, his next momentous decision or his next small decision that makes the gem of government shine or fractures it.
In short, he has the same job responsibilities as every other private or public chief executive. He and they don’t deserve slack; they deserve encouragement to stay on their game and thanks if and when they do.
an if that don’t work, here’s excuse B:
newt gingrinch said he’s running for Prez in 2012, and I died laughing
somebody turned him into a NEWT, and he didn’t get better …
The GOP is effectiely Newtered !
… apologies to punaise …
Don’t know whether punaise will accept your apology, but well done.
Kagan’s support letters include one from Brad Berenson, also, if I recall, Dean Koh. I think she will have the votes if her nomination goes to the senate floor. The committee voted Ogden’s nomination to the chamber proper last week. LegalTimes had a few articles on Kagan one month ago. She clerked for Justice Marshall; one article by Mauro loc.cit. quoted from Hasen the hope that Kagan’s background demonstrates her advocacy would be stronger than the Bush SG’s ever would have been, e.g., in the Namudno case about gerrymandering and weakening DoJ’s civil section. I think there is a place for her strengths in the center, which in these times is far left from where Bush’s concept of the presidency would have taken the law. I have yet to find the transcript of her hearing, though it may be at the SJudiciaryCmte site by now.
Found this in the Hunter College High School Yearbook:
“In my family, getting the (HCHS)
Distinguished Alumni Award [for 2003]
was better than getting the Nobel Prize,”
laughs Elena Kagan ‘77, the Charles
Hamilton Houston Professor of Law and
recently appointed Dean of Harvard Law
School. Dea n Kagan owns a stellar re-
sume which includes stints as Associate
Counsel to the President (1995-96) as well
as Deputy Director of the Domestic Pol-
icy Council (1997-99) where she was in-
strumental in crafting groundbreaking
tobacco regulation legislation. Despite
her accomplishments, it’s easy to under-
stand why to her family the Hunter
award shines so brightly—Kagan’s ties to
Hunter run far and deep. Her brother
Irving Kagan is an HCHS alumnus and
veteran teacher in the Social Studies de-
partment. Mother Gloria Kagan taught
for many years in the elementary school
and Dean Kagan has a niece currently en-
rolled at Hunter.