When Dems Believed In The Kagan Standard

By Big Tent Democrat, Section Supreme Court
Posted on Fri May 14, 2010 at 09:23:51 AM EST
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The Kagan Standard:

[Elena Kagan] called on the Senate [. . .] to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Then Senator Barack Obama stated that the Kagan Standard is even more imperative for a nominee with no judicial record:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

As regular readers know, this is a view I embraced many years ago, and discussed often during the 2005 John Roberts confirmation process, and later the Alito and Sotomayor confirmation processes. In a Bloggingheads session with Glenn Greenwald, Larry Lessig makes the utterly vapid argument that Professor Kagan is different from nominee Kagan and Dems should not take the same position they did with Republican nominees. Not only is this baldly unprincipled and hypocritical, it is also stupid. I'll explain why I think so on the flip.

First, if Lessig believes the Kagan Standard is the right approach for the Senate to take, then he should be for it no matter who is the nominee. It simply weakens the argument for the Kagan Standard when "advocates" for it say I want to apply it to your folks but not to mine.

Second, what is Lessig afraid of regarding Kagan's answers under a Kagan Standard? Will she say things he thinks conservatives won't like or that progressives won't like? In any event, everyone has the right to know what a nominee to the Supreme Court thinks about the issues relevant to the Court.

Finally, one argument against progressive critiques of Obama and Dems is that:

We've got a lot of work to do to get our message across. We're not going to get there by regularly joining right-wingers in Obama pile-ons.

Here's a chance to "get our message across" and persuade the country. That requires a nominee who will express her views, defend her views and persuade that her views are the correct ones.

Hiding and cowering about our views is not how to persuade the country.

Speaking for me only

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When Dems Believed In The Kagan Standard | 4 comments (4 topical)

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This administration is building a (5.00 / 1) (#1)
by Anne on Fri May 14, 2010 at 10:25:06 AM EST

terrible record on transparency and accountability, and to not take the opportunity this nomination offers to be as open as possible with the American people, to not be willing to show the people how this process should be done, would be a damn shame.

Let us hear what Kagan thinks, let us see some open dialogue with the members of the Committee, let us see if she is willing to gently persuade those who disagree with her why her positions should prevail.

I know we're not going to get that. It will be polite and congenial and the usual suspects will once again reveal that they are every bit as ignorant as we think they are, and there will be lots of sound and the weak version of "fury," and it will all come down to the same thing: easy confirmation.

It would be nice if, for once, it wasn't complete and utter kabuki, but then again, there's a long list of things I've felt that way about, and so far, I'm pretty much 0-for, and I'm not expecting anything different this time.

: Speaking of transparency... (none / 0) (#2)
by BTAL on Fri May 14, 2010 at 12:00:17 PM EST

WH locking down access to Kagan family members.
WSJ:

White Houses traditionally put a muzzle on their Supreme Court nominees, to keep them from saying anything that might jeopardize Senate confirmation. But the Obama White House has taken it one step further. It is limiting, if not blocking, access to the nominee's family.

Remainder with more detail at:
http://cityroom.blogs.nytimes.com/2010/05/13/white-house-limits-access-to-kagans-family/?scp=1&s q=kagan%20brother&st=cse

Where does this get us? (none / 0) (#3)
by Robot Porter on Fri May 14, 2010 at 12:46:16 PM EST

Assume she is somewhat more forthcoming. If she isn't a moron, and wants the job, she's only going to present a judicial philosophy which is within the mainstream. There's no reason for her to do otherwise. She isn't accountable for what she says.

Anyone with half a brain could tell when Roberts was lying. And his writings on the court have proven that he was. But he's still chief justice.

Hypocritical? (none / 0) (#4)
by diogenes on Fri May 14, 2010 at 07:54:22 PM EST

Look at it this way. The rules don't apply to the Administration, only rationalizations to the "greater good" and thus one standard for Miers and one for Kagan.