We should expect the usual lights, camera and dull action during this Supreme Court nomination process. It will be as noticed by the general public as bugs on a windshield, yet as ubiquitous as those Starbucks java joints we thought they scaled back.
It will play itself out like a cerebral, chatty crime drama, replete with the all-White male cast, save the skirted, frantic female staffer scurrying behind them. In this case, the President sought to mix it up - his way - with another female pick. That's about the only aspect of this episode that is truly "different." If, as metaphorical benchmark, you liken it to MSNBC picking Rachel Maddow to shake up its out-of-touch and White-male dominated program lineup, then it's not all that "different." At least we know where Maddow is coming from. However, legal world poster-kid Jeffrey Toobin points out that with Solicitor General Elena Kagan, you do not:
Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she's a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. Kagan will have to do something she's not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she's up to the job, but am less clear on how she'll do it.
Little wonder that Dictionary.com's Word of the Day on Monday, May 10, 2010 is "mugwump: n. a person who is unable to make up his or her mind on an issue, especially in politics."
SCOTUS picks are, essentially, Presidential prerogative - a mollified, very tempered Executive version of a raging motorist flipping their finger. SCOTUS picks reflect Presidential attitude, where both Kagan and now Justice Sonia Sotomayor are, for President Obama , beautifully low key. Politico's Glenn Thrush conjectures:
It's the audacity of caution.
Obama's pre-selection talk was bold and progressive on the big picture issues of judicial fairness and fighting for common people against powerful business interests. Yet he struck a far more moderate tone in private, with administration officials telling ... - on the very day Justice John Paul Stevens announced retirement -- that they were seeking someone "confirmable" and collegial enough to sway conservative swing Justice Anthony Kennedy.
This confirms why SCOTUS nomination "battles" are not really the major partisan conflicts they once were. There is no scarred philosophical battlefield where Senators charge across the aisle in partisan fury. John Rutledge. Louis Brandeis. Robert Bork. Clarence Thomas. Harriet Miers. These nomination showdowns seem so distant, like ancient American mythology. This new age of NesQuik Senate confirmations reflects the nature of the process: measured, calculated and extremely political. Here is where the President gives us the latest and greatest glimpse of his awe-inspiring political acumen:
1) The Better-than-Oil-Spill-In-Our-Face Pick
The timing of this announcement is politically impeccable. With 3.5 million gallons (and counting) already spilled into the Gulf of Mexico and no sign of plugging it in sight, what better way to shift gears. Obviously, the Administration is awfully worried that it's inability to contain ecological apocalypse on its Southern shores will define its legacy. A SCOTUS nominee announcement can slow that down a bit.
2) The Single Woman with No Kids Pick
Not to mention Kagan is a single woman with no children (now a clear trend given Sotomayor's background), but it's obviously non-controversial - feminists to his left can't comment and male Senate Judiciary Committee Members can't balk either for fear of pushing a boot in the wrong place. Will he maintain good standing with the female electorate, particularly White females? Since he didn't pick the highly qualified African American and Georgia Supreme Court Justice Leah Ward Sears (now a two-time SCOTUS nomination mention since dissed last year in favor of placating Latino voters), he definitely believes that he's got the Black vote - especially the Black woman vote - locked up.
3) The (New York) Jewish Pick
Such a nomination comes at a time when the President is sure to worry about his standing with Jewish voters: from Iran to his beef with Israeli Prime Minister Benjamin Netanyahu to Goldman Sachs. Would not be surprising to find Sen. Charles Schumer (D-NY) pushing for Kagan.
4) The Ivy League Pick
In this instance, President Obama busts Ivy League pose, paying homage to his ivory tower bona fides and the folks who sponsor it all. The White House wants to desperately sell this as a "diverse" pick simply because Kagan's a woman - and the first woman to serve as Dean of Harvard Law School. That's, in all frankness, extremely problematic considering the High Court is overpopulated with Ivy School pedigree, including one knucklehead who admits to throwing his Yale law degree in a waste basket. The larger question: what's up with all the Ivy League Law School picks? Last check, Article III of the Constitution didn't mention that requirement. Does the perceived snobbishness of the SCOTUS truly represent diverse American values, experiences and cultural legacies? In "moving on up," has the President lost touch?
5) The She's-Really-Not-All-That-Diverse Pick
The White House is more than eager to drop multiple references to Kagan's time as a clerk for Justice Thurgood Marshall. That might work for talking points and Washington Post reporters who appear sold on it, but a few law professors were quick to point out that Kagan is embarrassingly non-committal to the practice of diversity in a recent Salon.com piece:
When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century.
They may be an informal Band of Ivy League Haters - hailing from high-end expensive law schools that can't seem to make the SCOTUS cut - but, it is a point worth noting while Kagan gets confirmed.
(originally published in Politic365.com)
How will Trump’s administration impact you? Learn more