Supreme Court confirmations are always ripe for political hypocrisy, as lawmakers contort their critiques around the party affiliation of the president who nominated the candidate. Elena Kagan's path to the highest bench is proving no different.
On Wednesday, Senate Minority Leader Mitch McConnell (R-Ky.) made a big show on the Senate floor of questioning the impartiality of President Obama's choice for the court. Pointing to scribbled notes Kagan wrote during her time in the Clinton administration, in which she explained that changes in campaign finance laws could help Democrats, McConnell insisted that this nominee was committed to "advancing a political agenda."
Kagan, he said, is "a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal."
"In other words," he continued, "these memos and notes reveal a woman whose approach to the law was as a political advocate -- the very opposite of what the American people expect in a judge."
This is a conventionally conservative criticism -- drawn from the notion that liberal "activist" judges will use the court system to engineer social policy. But recent history offers a version of McConnell defending a Supreme Court nominee who was criticized for offering a similar type of counsel.
Back in July 2005, the Kentucky Republican was helping shepherd John Roberts's Supreme Court nomination through the Senate when a cadre of predominantly progressive institutions attacked the Bush nominee over documents that they argued showed him to be one of the "key lieutenants in the right-wing assault on civil rights laws and precedents." McConnell defended Roberts by arguing that the notes he had penned for his superiors merely reflected their advocacy, not his.
News reports, he said, "run the risk of simplifying complex constitutional issues beyond recognition."
"If a lawyer defends a client accused of stealing a chicken, it does not then follow that the lawyer is a chicken thief," he declared at another point in time.
To be sure, the same progressive groups that made hay out of the Roberts documents will in all likelihood argue that the Kagan memos are no reflection of her personal politics. That too would be a reversal of position. But McConnell is now pointing to these Kagan notes as a potential disqualifier. At the very least, he's hinting strongly that the GOP is poised to make dramatic theater out of her alleged "advocacy." And in that respect, it's helpful to see where he stood several years prior, when the political dynamics were different.