Elena Kagan’s nomination to be S.G.

A friend sends this email:

So, I have some friends and fam­ily that want me to start a small rev­o­lu­tion over the nom­i­na­tion of Elena Kagan for Solictor General. What do you think of her?
I am sorta scared that this is def­i­nitely a pre­quel to the replace­ment of Ginsburg. I’m think­ing Kagan is per­haps left of Ginsburg too?
I thought this might be right up your alley.

My response? No: nei­ther Josh nor con­ser­v­a­tives gen­er­ally should oppose Elena Kagan’s nom­i­na­tion to be the United States’ Solicitor General.

Dean Kagan might be more left­ist than Justice Ginsburg or whomever she might replace on the Court (empha­sis on both mights), but being on the left (or on the right) does not dis­qual­ify some­one from being the Solicitor General. To get through this cur­rent nom­i­na­tion, Kagan should demon­strate that she is qual­i­fied to act as the fed­eral government’s advo­cate before the Supreme Court. This includes demon­strat­ing a will­ing­ness to defend the all of the laws of the fed­eral gov­ern­ment, includ­ing the laws she dis­agrees with. She has demon­strated that abil­ity in her nom­i­na­tion hearings.

Josh’s key con­cern isn’t Kagan’s qual­i­fi­ca­tion to be Solicitor General, though. Rather, Josh sus­pects that Kagan, the out­go­ing dean of Harvard Law School, is in line to take a spot on the Supreme Court when the next vacancy occurs. Several legal observers share his suspicion.

Opposing Kagan’s cur­rent nom­i­na­tion would con­tinue a unfor­tu­nate, harm­ful D.C. pas­time. The game—blocking your oppo­nents’ poten­tial Supreme Court nominees—goes some­thing like this.

  1. Identify ris­ing legal stars in the oppo­site polit­i­cal or judi­cial camp.
  2. When a pres­i­dent nom­i­nates these ris­ing legal starts to “pipeline” posi­tions that could lead to a seat on the Supreme Court, fight their nom­i­na­tions with every sub­stan­tive com­plaint and pro­ce­dural maneu­ver you can man­age. (The pub­lic doesn’t pay much atten­tion to this round of the game, so if you want to defeat nom­i­nees that would be hard to oppose in the attention-​​grabbing Supreme Court nom­i­na­tion round, this is your chance. Be sure to oppose the nom­i­na­tions of women and racial minori­ties with zeal.)
  3. Don’t let your guard down when you defeat one nom­i­na­tion; you can’t let any­one through. That way, the pres­i­dent will be forced to nom­i­nate some­one you like (or at least some­one you like bet­ter than the nom­i­nee you defeated).

President Bush’s nom­i­nees were often the pawns in this game. Peter Keisler’s nom­i­na­tion was defeated this way. Miguel Estrada’s, too. (His par­tic­u­larly dis­taste­ful ordeal was recounted here. It’s note­wor­thy that he has endorsed his Kagan, his for­mer class­mate, in her nom­i­na­tion.) Kagan her­self has been sub­ject to this before. Her nom­i­na­tion by President Clinton, to the D.C. Circuit in 1999, was defeated this way.

But the nation’s judi­cial process is more than a game, and it does not ben­e­fit us when our judges (and those in promi­nent legal posi­tions) are forced through a tit-​​for-​​tat nom­i­na­tion process. Qualified and inter­est­ing can­di­dates get culled from the nom­i­na­tion pool (or never let them­selves be con­sid­ered). Lawyers who might oth­er­wise advance legal debate silence them­selves, fear­ful of cre­at­ing a record for the oppo­site side to ful­mi­nate against. Blameless indi­vid­u­als must endure name-​​calling and invec­tive that is dis­re­spect­ful of them and the judi­cial process.

Beyond the neg­a­tive effects of this game, the play­ers in it seem to take a dim view of the president’s pre­rog­a­tive to nom­i­nate indi­vid­u­als whose views fit his own. The pres­i­dent, duly elected by at least 270 elec­tors, is enti­tled to nom­i­nate qual­i­fied indi­vid­u­als whose under­stand­ing of the law and the Constitution fits his own. As we have heard many times, “elec­tions have con­se­quences.” Though it may be hard for elec­toral losers to accept, a key con­se­quence of a loss at the bal­lot box is the loss of the abil­ity to put their pre­ferred nom­i­nees on the bench. And it’s not appro­pri­ate to do an end run around this pres­i­den­tial pre­rog­a­tive by oppos­ing poten­tial judi­cial nom­i­nees at an ear­lier stage.

But the elec­toral losers should take heart: in America, nei­ther of the major par­ties is ever out of power for long. Today’s con­ser­v­a­tive minor­ity, loud while on the out­side look­ing in, will be tomorrow’s con­ser­v­a­tive major­ity. When the White House is again in Republican hands, con­ser­v­a­tives will (rightly) talk about the president’s right to nom­i­nate the sort of judges he promised to nom­i­nate. They were talk­ing that way just last year.

We should not be naïve: this game did not start with Obama’s inau­gu­ra­tion. Or Bush’s or Clinton’s, for that mat­ter. It likely will not end. Democrats will rage against Republican obstruc­tion this term (ignor­ing their own obstruc­tion, the way this blog post seems to), and Republicans will rage again in a term or two. Perpetuating the game, how­ever, harms America and its judi­cial process. We should not aid and abet in that harm.

Note: This post was edited for style and for spelling errors on February 262009.

2 thoughts on “Elena Kagan’s nomination to be S.G.

  1. Nathan,

    Well put. That answers my ques­tion. Interestingly enough, Miguel Estrada, a Harvard class­mate of hers and a con­ser­v­a­tive appointee of Bush, wrote a let­ter to the Judiciary Committee endors­ing her nom­i­na­tion. While I agree with you over­all in your answer/​post, I do fear a lit­tle con­cern­ing the Solomon Amendment. As a mem­ber of the US Armed Forces I am very dis­s­a­pointed and a bit dis­gusted that schools in the past took fed­eral gov­ern­ment money while bar­ring that same government’s mil­i­tary recruiters. Because Dean Kagan was so opposed to this amend­ment, and per­haps has some very deep per­sonal rea­sons for this oppo­si­tion, I am slightly con­cerned that she may not be able to defend such in a future legal bat­tle. However, that is one small piece of leg­is­la­tion which is unlikely to come before the Supreme Court again any­way due to Rumsfeld v. FAIR.

    As a side note on the military’s “don’t ask, don’t tell” pol­icy: I have thought a lot about this pol­icy and beleive it should be re-​​emphasized and re-​​defined a bit so that all mil­i­tary mem­bers regard­less of gen­der or sex­ual ori­en­ta­tion must adhere to a high pro­fes­sional stan­dard of con­duct which should pre­vent any focus on one’s per­sonal life and inti­macy prac­tices out­side the work­place. In other words, I am so sick and tired of typ­i­cal straight Marines drag­ging thier pri­vate inti­mate lives into every con­ver­sa­tion. It is quite offen­sive. And many of the prac­tices of mil­i­tary mem­bers is pun­ish­able under the UCMJ as it is (ie: Adultery, etc.). Overall, the mil­i­tary as a whole needs to raise the bar on the con­duct of its mem­bers as it relates to their work demands. It is innap­pro­pri­ate for any mil­i­tary mem­ber to drag his/​her per­sonal inti­mate life into the work­place in any way, if such prac­tices or unpro­fes­sion­al­ism impact ones work­place, they should be pun­ished (how­ever, not out­right removed, unless it is con­gru­ent with dis­charge under the UCMJ). For exam­ple, I know many Marines who through a Non-​​Judicial Punishment (under the UCMJ) have lost rank for domes­tic vio­lence while liv­ing on base since the MP’s got involved. In sim­i­lar fash­ion, if a Marine, regard­less of sex­ual ori­en­ta­tion, were to in some­way neg­a­tively impact the work­place through his actions in his per­sonal life, he would be pun­ished. In other words, indi­vid­u­als who are homo­sex­ual should not be removed from the mil­i­tary even if they are open and oth­ers know about it. They should, like a het­ero­sex­ual, be removed if they vio­late the UCMJ and let their per­sonal life neg­a­tively impact the workplace.

    However, with that said, I should inform the pub­lic that there are many openly gay mem­bers of the mil­i­tary who have not been dis­charged under the “don’t ask, don’t tell” pol­icy. The fact is that their co-​​workers and lead­ers could care less about their sex­ual ori­en­ta­tion because it does not impact their pro­fes­sional work and on a per­sonal basis, their co-​​workers value their com­pan­ion­ship in the armed forces. I believe this is quite com­mon. For those who vehe­mently oppose the mil­i­tary because of their espoused “don’t ask, don’t tell” pol­icy I chal­lenge them to find a recent occurence when a mem­ber of the mil­i­tary (who DID NOT want to be dis­charged) was dis­charged for their sex­ual ori­en­ta­tion. My guess is that most who get dis­charged essen­tially use it as an easy way to get out of the mil­i­tary, rather than upstand­ing mem­bers being forced out based on mere sex­ual ori­en­ta­tion alone. My expe­ri­ence is that the fel­low mem­bers pro­tect those co-​​workers of theirs who are gay. Even in the Marine corps (which could be thought of as most hos­tile towards a gay member–this is not the case).

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