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Monday, May 10, 2010

Some Initial Thoughts About Kagan is She Unqualified or Unknown

Last night when I first heard Solicitor General Solicitor General Elena Kagen was nominated for the Supreme Court, my first reaction was she was perhaps the most unqualified pick for the court in a very long time. Rather than write that up, I decided to sleep on it, which was the prudent idea.

In graduate school, the professor who taught advertising had barely been out of a classroom, after my entry into the real world of advertising, I learned that almost everything she taught us was wrong. She understood the text book but couldn't comprehend the real world.  Elena Kagan is like that professor.

With a clear head I can honestly say that Elena Kagen is perhaps the most unqualified pick for the court in my life time. She has never been a judge, she has very little real legal experience outside of a classroom, and she has a limited record of legal scholarship.

On the positive side she has a reputation of being a "friend" to many people who do not share her political opinions, but as the NY Times reported today, she has a reputation of being a bit of a bully:
“While she was respected inside the Clinton White House for her smarts (she would often bat around constitutional law questions with the president), one Clinton colleague, Jamie Gorelick, told The New York Sun in 2006 that Ms. Kagan was seen by some as brusque and overly demanding. She sometimes rubbed people in the Justice Department the wrong way.

‘She was extremely aggressive when she was in the White House in trying to carry out the president’s agenda,’ Ms. Gorelick, a former deputy attorney general and a fan of Ms. Kagan, was quoted as saying. ‘She was not the most popular person there in part because of that.’”
For President Obama she is the perfect pick, he is not able to expend much political capital on the pick and her lack of a scholarly track record, or record as a Judge means she should pass easily.

One of the few times she had to make a stand Kagan "punted" which may be an indication of her background as a "political" player rather than a judicial one:
An article in today’s New York Times—“Potential Court Pick Faced Dilemma at Harvard”—tries to paint former Harvard law school dean Elena Kagan as a “pragmatist” for railing vehemently against the Don’t Ask, Don’t Tell law while being careful not to jeopardize the flow of hundreds of millions of dollars of federal funds to Harvard.  I think that it’s far clearer that she was just engaging in cheap and contemptible moral posturing.

If Kagan genuinely believed that the Don’t Ask, Don’t Tell law was “a profound wrong—a moral injustice of the first order,” why would she make herself complicit in implementing the grave evil?  Yes, of course, it’s true, as the article points out, that “barring the recruiters would [have] come with a price.”  But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, “We’ve already established what you are, ma’am. Now we’re just haggling over the price.”  (My point isn’t that Kagan deserves the Bernard Shaw slam—she doesn’t—but rather that she evidently doesn’t believe her own rhetoric.)

Despite her reputation as a bully, when push comes to shove she has also been known to build consensus, that will be her role on the Supreme Court, to figure out how to bring Justice Kennedy to the Liberal side of 5-4 votes.

Is Elana Kagan qualified to be on the Supreme Court? It depends. If you are looking for someone with strong credentials to sit on the court, she is not the most qualified pick that President Obama could have made. But she is perfect for what the president wants, she has a sparse track record to trip her up during confirmation hearings, but she has the potential of being not just one more liberal vote, but one and a half, if she can influence Justice Kennedy.


Anonymous said...

Great Article!! You failed to mention the 40, yes 40, SC Justices that attained the role without prior judicial background but due to their work in other fields. Do your homework and understand how the nominating practice works!

Name of Justice Prior Occupations Years On Court Appointed By President:
1. William Rehnquist Asst. U.S. Attorney General 1972-2005 Nixon (Assoc., 1972),
Reagan (Chief, 1986)
2. Lewis Powell President of the American Bar Ass'n,
Private Practice 1972-1987 Nixon
3. Abe Fortas Private Practice 1965-1969 Johnson
4. Byron White Deputy U.S. Attorney General 1962-1993 Kennedy
5. Arthur Goldberg U.S. Secretary of Labor 1962-1965 Kennedy
6. Earl Warren Governor of California 1953-1969 Eisenhower
7. Tom Clark U.S. Attorney General 1949-1967 Truman
8. Harold Burton U.S. Senator 1945-1958 Truman
9. Robert Jackson U.S. Attorney General 1941-1954 F. Roosevelt
10. James Francis Byrnes U.S. Senator 1941-1942 F. Roosevelt
11. William O. Douglas Chairman of the S.E.C. 1939-1975 F. Roosevelt
12. Felix Frankfurter Asst. U.S. Attorney, Asst. Secretary of War,
Prof. of Law at Harvard 1939-1962 F. Roosevelt
13. Stanley Forman Reed U.S. Solicitor General 1938-1957 F. Roosevelt
14. Owen Josephus Roberts Special Counsel in "Teapot Dome" investigation and trials 1930-1945 Hoover
15. Harlan Fiske Stone U.S. Attorney General 1925-1946 Coolidge (Assoc., 1925),
F. Roosevelt (Chief, 1941)
16. Pierce Butler County Attorney, Private Practice 1923-1939 Harding
17. George Sutherland U.S. Senator 1922-1938 Harding
18. Louis Brandeis Private Practice 1916-1939 Wilson
19. James Clark McReynolds U.S. Attorney General 1914-1941 Wilson
20. Charles Evans Hughes Governor of New York,
U.S. Secretary of State 1910-1916,
1930-1941 Taft (Assoc., 1910),
Hoover (Chief, 1930)
21. William Henry Moody U.S. Attorney General 1906-1910 T. Roosevelt
22. George Shiras, Jr Private Practice 1892-1903 Harrison
23. Melville Fuller Private Practice 1888-1910 Cleveland
24. Lucius Quintus Cincinnatus Lamar U.S. Secretary of the Interior, U.S. Senator 1888-1893 Cleveland
25. Joseph Philo Bradley Private Practice 1870-1892 Grant
26. Salmon P. Chase U.S. Treasury Secretary 1864-1873 Lincoln
27. Samuel Freeman Miller Private Practice 1862-1890 Lincoln
28. Noah Haynes Swayne U.S. Attorney for Ohio, Ohio Legislator 1862-1881 Lincoln
29. Nathan Clifford Maine & U.S. Attorney General 1858-1881 Buchanan
30. John Archibald Campbell Alabama Legislator 1853-1861 Pierce
31. Benjamin Robbins Curtis Massachusetts Legislator 1851-1857 Fillmore
32. John McKinley U.S. Senator 1838-1852 Van Buren
33. Roger Brooke Taney Maryland & U.S. Attorney General,
U.S. Treasury Secretary 1836-1864 Jackson
34. Henry Baldwin U.S. Congressman 1830-1844 Jackson
35. Joseph Story Speaker of Mass. House of Reps., U.S. Congressman 1812-1845 Madison
36. John Marshall U.S. Secretary of State 1801-1835 Adams
37. Bushrod Washington Virginia House of Delegates,
Reporter for Virginia Court of Appeals 1799-1829 Adams
38. William Paterson Governor of New Jersey 1793-1806 Washington
39. John Jay President of the Continental Congress,
U.S. Secretary of Foreign Affairs 1789-1795 Washington
40. John Rutledge Governor of South Carolina 1789-1791, 1795 Washington

Unknown said...

Cadam, next time read the article. How many of those 40 had almost no experience as a practicing lawyer and very little experience as a PUBLISHING academic.

Most of Kagan's experience is as an Academic Administrator

in the vanguard said...

She wrote in one political thesis, while lamenting on the fall of socialism:
"American radicals cannot afford to become their own worst enemies. In unity lies their only hope."

Simply put, she's a radical socialist.