Bonnie Erbe: Parallel universes for Kagan?
by Bonnie Erbe
Columnist
May 19, 2010 12:00 AM | 407 views | 0 0 comments | 7 7 recommendations | email to a friend | print
As soon as I heard that President Obama had selected Elena Kagan as his next Supreme Court nominee, I thought, "Gee, we're in for a fight." And Republican Senators made known their objections immediately: not enough (or any for that matter) judicial experience, too liberal, too supportive of Obama Administration policies they love to vilify, and so on.

Does this mean she won't end up being confirmed to the Supreme Court? Right now, that seems highly unlikely. But this doesn't mean Republicans aren't going to set their snoop dogs on her trail and into action, to dig up dirt on Kagan and use it against her during her confirmation hearings.

That said, I was dumbfounded when a fellow commentator had such a completely different take on how the Kagan nomination will proceed. Here's the Atlantic's Clive Crook's lead paragraph in his story on the nomination, expecting, I suppose, that Kagan's nomination will encounter little or no opposition:

"Nobody seems to think that Elena Kagan, Obama's nominee to replace John Paul Stevens on the Supreme Court, will have much trouble getting confirmed. She was the strong favourite to get the nomination precisely because she is so confirmable. Obama has enough to contend with at the moment without having to fight for a controversial nominee. A moderate liberal is indicated, to replace Stevens, who was a moderate liberal. Ms Kagan seems to fit the bill."

In this bitterly divided Congress I cannot imagine either party letting the other blithely off the hook over a Supreme Court nomination. If nothing else, Republicans on the Senate Judiciary Committee will figure out something to paint Kagan with all the supposed sins of the Democratic Party, especially just months before an election. They will use Kagan as a poster child for the Democratic ills they want voters to go to the polls to vote against.

Senate Judiciary Committee member Jeff Sessions (R-Ala.), told the Wall Street Journal: "A number of the Obama agenda items, from health care to economics to terrorism, could be challenged in court, and it is important that the nominee to the bench be objective and fair,"...

What will be particularly nettlesome for Kagan will be navigating the path that she herself created in 1995 when she reviewed Stephen Carter's book on confirmation hearings, "Confirmation Messes, Old and New." Kagan, "criticized senators for failing to ask, and nominees for refusing to answer, questions about their views on specific issues. Senators ought to dig deeply, she contended, asking straightforward questions about both the nominee's judicial philosophy and her substantive views on constitutional issues: "The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution."

Of course her handlers will figure out ways to directly answer the tough questions (on abortion rights, first amendment rights, executive powers and so on) without really answering them. If she is honest and forthright, she will truly make history. She will also give many senators on the Judiciary Committee fodder to vote against her.

I for one will be thrilled, if she is confirmed, to see three women justices on the Court. Even though Kagan is supposed to be a more moderate liberal than the man she would be replacing - Justice John Paul Stevens who is retiring - having three women on the court will finally constitute a bloc worth reckoning with. It does not necessarily mean the Court will lean farther left. Indeed, Kagan is considerably to Justice Stevens' right on some important issues such as executive powers. But women's perspectives in politics always change things and her presence on the Court will change that institution as well.

Bonnie Erbe is a TV host and writes this column for Scripps Howard News Service.
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