Elena Kagan's first "interview" as a Supreme Court nominee quickly hit some turbulence.
Kagan sat down with Arun Chaudhary, an Obama administration staffer, for a White House video presenting Kagan "in her own words." Like a campaign bio ad with a dash of 60 Minutes, the three-minute film shows Kagan's rise, as she sits, flanked by an American flag, ticking through her work as a law clerk, dean and government attorney.
Yet the video, like Kagan, says virtually nothing about her legal views.
And the video, like the White House, aims to divert rather than answer public questions about this important nominee.
While Obama's staff often use web videos to share information and advocacy directly with the public, routing around the media filter, the Kagan spot drew unusually sharp complaints from reporters and legal commentators. A CBS News report of press secretary Robert Gibbs's dismissive response to questions about the video was the most linked story online Wednesday. And Jonathan Turley, a George Washington University law professor, compared the White House's Kagan press strategy to Sarah Palin's stint on the 2008 campaign trail. That's probably the only name that tops Harriet Miers for heartburn on Pennsylvania Ave right now.
Supreme Court nominees do not usually do media interviews before their confirmation hearings, however, so it's not like the White House has breached decorum or Washington expectations. There is a much larger dynamic in play.
Obama has tapped a thoroughly qualified individual with a very thin paper trail. This is an individual who used to argue that Supreme Court nominees should "reveal" themselves and disclose their "views on important legal issues" in confirmation hearings. Kagan even blasted the modern, evasive confirmation process as an "embarrassment" -- a "vapid and hollow charade."
But now, White House officials say Kagan has dropped those ideas altogether.
"Does anyone, anywhere, believe that her 'reversal' is motivated by anything other than a desire to avoid adhering to the standards she tried to impose on others?," asks attorney Glenn Greenwald, a vocal Kagan critic. It's a good question, since applying standards fairly and uniformly is a key quality that many people look for in judges.
The broader issue is whether the U.S. Senate will find a way to dispense with a review of judicial nominees that purports to ignore ideology and judicial values - a process that everyone who is not up for confirmation rightly sees as, yes, a charade. Even senators admit it.
"The not-so-dirty little secret of the Senate is that we do consider ideology, but privately," explained Sen. Chuck Schumer in 2001, when he was leading an aggressive effort on a Senate Judiciary Subcommittee to bring ideology out of the shadows and back into the confirmation process. The ideology test was more about how than if, argued Schumer, so overtly ideological hearings would actually serve transparency. "Examining the ideologies of judicial nominees has become something of a Senate taboo," he explained, "in part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground."
Schumer did make some progress in nudging his colleagues to nudge appeals court nominees, as Jeffrey Toobin reported in a thorough 2003 article, but by John Roberts' hearings it was back to judges calling "balls and strikes." That metaphor, draining judges of any larger legal vision, has stuck. In fact, during a single day of hearings for Obama's last nominee, Sonia Sotomayor, there were over 25 references to "balls and strikes" or umpires.
Many people would prefer an honest airing of the views, ideology and legal principles of the people headed for the most powerful lifetime job in America. President Obama may have uncorked more than he bargained for, in nominating a qualified, talented but largely unknown attorney -- who happens to have a clear record supporting ideological candor for nominees -- in order to fill the large, liberal shoes of Justice John Paul Stevens.
Let's learn more about her. She's not Sarah Palin and she's not an umpire. Here's hoping the White House will free Elena Kagan. Or that she frees herself.
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Ari Melber writes for The Nation, where this column first appeared.
Follow Ari Melber on Twitter: www.twitter.com/AriMelber
Phil Bronstein: Yes, There Are Tea Partiers in the Bay Area
A lot of San Franciscans seem horrified at the Tea Party phenomenon. I'm interested in the people behind the provocation of conservative thinking right here in the heartland of Nancy Pelosi, so I invited two Tea Partiers to San Francisco for a friendly chat.
Incidentally, the same is largely true of journalists - while they start out like all other Americans, their actual experiences tend to make them into Liberals. The alternative is not conservatism, but selfishness, a total lack of empathy for your fellow citizen, and an emphasis on immediate personal greed over long-term well-being.
Conservative Justices are just as activist as Liberal ones, only the purpose of their activism is different.
Homer also has the humility to admit that he cannot predict the future of her opinions on the bench, which is a refreshing change from people who believe they have a crystal ball and can tell us how this justice will decide cases for the next 20 years, or what the "Trend" of the Obama presidency is after barely a year or whatever.
He's not the most eloquent poster, but it wasn't 9 lines of fail, and even if it was homer didn't make you read it. Take some responsibility for your own actions.
That's why he wrote a 90-page dissent in Citizen's United.
Except for the current crop of right wing ding-dongs, most Justices in recent years gravitated to the Left. Could that be because the Left is the way to interpret and rule in cases guided by the Constitution? You bet.
No, it's not. It has been the well-understood rule of American politics that Presidents appoint Justices who share their ideologies, and it is absolutely true that (Republican) Ford appointed (Republican) Stevens, a rule also followed in every other appointment in the last 50 years or more.
Similarly, Supreme Court justices acknowledge the unwritten rule and tend to retire during an administration of the stripe that supported them. For exaple, Justice Ginsberg (like Stevens an appointed Republican whose excellent reasoning and experience moved her to the left during her term) retired during the Bush presidency even though she was concerned that he would appoint a hard-liner who would dramatically sway the Court's direction (he did).
So on examination Roger's premise is 100% correct.
He is also correct that it was only the recent Republican administrations that were willing to appoint absolute extremists - including appointing the youngest ever SC Justice DIRECTLY to the Chief's position - in a naked effort to pervert American justice for the next 30 years.
He's also correct that historically (until the ding-dongs) Conservative justices have been moved to the left by their experience on the Court. Tough not certain, his conclusion that this is the 'correct' way to interpret the law is amply supported..
"Your writings are very inconclusive. "
Are they false or inconclusive? Be consistent!
And now, do you have anything other than hollow rhetorical questions? A point perhaps?
By the way this was published nearly a year ago this month on CBS:
"(CBS/ AP) Justice David Souter has told President Obama he plans to retire from the Supreme Court this summer."
Obama may be appointing a third justice soon. These will not necessarily change the court's make up because each is pretty liberal and will be replaced by someone of the same makeup. So far none of the conservative judges seems about to retire.
Qualified - Hates the military
Perfect - No paper trail - nobody will figure out how she really thinks
So if I accept your premise that you need peace after 8 years of Bush (to justify a SC pick), Obama could nominate Lucifer and that would be okay by you.
That is best we can hope for any of us.
best,
DenverJJ