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Karen Finney Headshot

The Supreme Court and 2010

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Get ready to rumble.

While most on Capitol Hill are admitting that Solicitor General Elena Kagen will likely be confirmed, both sides are still gearing up for a new round in the culture wars. The unfortunate truth is that Supreme Court nominations have increasingly become less about the actual record of the individual being nominated and more about using the process to attack the president, personal attacks on the individual, settling scores from previous nominations, and rallying the base. Admittedly, both sides do it, but frankly, Republicans do it better. While we will again hear debates on issues like abortion, privacy, gun control and "activist judges," in recognition that they can't derail the Kagen nomination, the GOP has its eyes on a different prize: the midterm elections.

Republicans have already admitted that part of their strategy will be to use the issues raised and the nomination fight both as a wedge for vulnerable democrats in red or purple states, and to help bolster or affirm conservative credentials for GOP candidates who face "purity tests" from within their own ranks.

Here's a look at how some of the key issues will be used in the narrative leading into the 2010 elections:

1) Timing: Both sides will call for a "civil process," but look for the White House and Congressional Democrats to press for the importance of an "up or down vote," and a confirmation timeline that would have Kagen confirmed by the August recess (if not before); consistent with the pattern set by Sotomayor (97 days), Roberts (90 days) and Alito (95 days). As they have done all year, Republicans will do everything they can to drag the process out, saying that they need adequate time to review her record, writings, speeches, etc. while simultaneously complaining that her record is "thin." The blog Talking Points Memo reported yesterday that a recording from an April 22nd conference call with top Republican strategist and director of the conservative Committee for Justice Curt Levey clearly laid out the strategy:

"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."

"Even if it's a nominee that we can't seriously stop, we can accomplish several things, and so a hard fight is worthwhile," Levey implored. "Certainly it can be to the political advantage of Republicans.... There's everything to be gained from making the Supreme Court vacancy a campaign issue in 2010."

"There's broader goals such as just distracting Obama from other items on his agenda," Levey added. "The tougher the fight the less capital and time and resources and floor time in the Senate there is to spend on immigration and climate change, etc."

2) Payback: Given the way Republicans have been quick to try and cast Kagen as President Obama's "Miers," you might not recall that many Republican senators themselves admitted during her nomination process that they found Harriet Miers "unimpressive" in private meetings, just as many conservative groups complained that she was not conservative enough. Now, even my conservative colleague Pat Buchanan admitted on Morning Joe today that the comparison doesn't quite hold up. Kagen has been widely praised from across the legal spectrum for her intellect, commitment to the law, and collegiality in an impressive career that includes serving in the Clinton Administration, Dean of Harvard Law School, clerking for Judges Abner Mikva and Supreme Court Justice Thurgood Marshall, not to mention serving as the Solicitor General for the United States. In fact, it has been suggested that Kagen could be an intellectual counterweight to Justice Roberts, a comment not made about Ms. Miers.

In fairness, some on the progressive side have also made the comparison to Miers. Citing concerns that there is not much of a record or writings that could give a sense of her judicial philosophy, and even her judicial experience. However, these concerns are raised in conjunction with questions about where she stands on issues like Miranda and the Citizens United case. The GOP on the other hand has raised these concerns not only based on issues, but also in an attempt to cast Kagen as a legal lightweight and therefore fodder to question President Obama's competence.

Judicial experience: Speaking of experience. Never mind that 40 out of 111 Supreme Court justices did not have prior judicial experience before they were appointed to the court including, William Rehnquist and Earl Warren, who were both nominated by Republican presidents. Again and again we will hear concerns about a lack of judicial experience, selectively editing out her relevant experiences, not to mention the opposite arguments made by some of the very same Republicans during the hearings of Clarence Thomas or John Roberts, suggesting that judicial experience isn't everything. As Senator Orrin Hatch said during the Roberts nomination, "I have long believed that prior judicial experience is not a prerequisite for successful judicial service."

It's going to get personal: When Kagen's name surfaced as a possible nominee, CBS and others erroneously reported -- based on gossip and innuendo -- that she is gay. Aside from the fact that in this day and age being gay should not be viewed or used as some kind of shameful, negative slander, or evidence that someone is lacking in judgment, the clear objective is to inflame right-wing conservatives, and create fear about a "gay agenda." As a heterosexual woman over 40, the complete ignorance about how American women are living our lives is as shameful as the old stereotype that, if you are "of a certain age" and unmarried, don't have children, or have more than one cat, you must be gay or, "can't get a man." According to a recent report by the AARP, "of the 57 million American women 45 and up, nearly half are unmarried," and we vote.