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GOP resistance is futile: Confirm Elena Kagan

Post by Patrick O'Callahan on July 4, 2010 at 4:18 pm with 7 Comments »
July 2, 2010 4:21 pm

This editorial will appear in tomorrow’s print edition.

Here’s a nightmare scenario for Democrats: What if Elena Kagan is telling the truth?

In last week’s Senate hearings, President Obama’s soon-to-be-confirmed Supreme Court nominee testified she’s about the law, the whole law and nothing but the law. She may be a “progressive” Democrat, but she’ll be “on nobody’s team” once she dons the black robe.

Heaven forbid that she would bring any preferred outcomes to a case.

“I mean, the worst kind of thing you can say of a judge is he or she is results-oriented,” she told the Judiciary Committee. “It suggests that a judge is kind of picking sides irrespective of what the law requires. …

“The judge should be trying to figure out as best she can what the law requires and not going in and saying, ‘You know, I don’t really care about the law, you know, this side should win.’”

How can anyone quarrel with that? For that matter, how can any Republican quarrel with a nominee whose distinguished legal career includes no time as an actual judge and thus no paper trail of decisions that can confidently be attributed to her own judicial philosophy?

Accused of making military recruitment tougher while dean of the Harvard Law School, she said she was merely representing Harvard’s institutional position against Don’t Ask Don’t Tell –and her personal opposition to the policy was not a factor.

Similarly, she argued for controversial positions while counsel to Bill Clinton – but she did so as his policy adviser and attorney, not necessarily because she favored those policies herself.

Does she subscribe to the liberal concept of a “living Constitution”? Too “loosey goosey,” she says.

Republican critics who’ve been contorting themselves every which way to find a line of attack on her might as well give up. There’s nothing to aim at, really, beyond that fact that she’s a Democrat.

In fact, they’d be smart to vote for her – down the road, that would let them scold the Democratic senators who dig in against the next Republican nominee for no better reason than he or she is a Republican.

If Kagan becomes – as she promises – a non-ideological, unpredictable, non-partisan, dispassionate, take-each-case-at-a-time arbiter of the law as written, the pure shock and surprise of it might induce premature heart attacks in some of her colleagues.

Every Republican in the Senate must realize that resistance is futile, that Kagan’s confirmation is a done deal. Why not revive – if only for a day – the grand tradition of bipartisanship that produced the unanimous confirmation of Reagan-nominee Antonin Scalia in 1986?

There’s always the slight chance that Kagan will turn out to be that rare species long thought to be extinct: the genuinely impartial jurist.

Leave a comment Comments → 7
  1. entrepreneur says:

    That’s right Patrick just grab our ankles and assume the position.
    Please find and read Ted Kennedy’s speech on the nonconfirmation of Judge Bork for a view of liberal nonpartisanship ! Kagan will turn out more secular progressive than the last Obama pick, you can count on It. Elections do have consequences. God save the Republic.

  2. larsman says:

    Again Pat, “go ahead, rest on my back and I promise to getcha across the river, honest” , said the crocodile to the cat…

  3. larsman says:

    BTW- this is not 1986, that is not Scalia and (you call yourself a journalist?) your attempt at moral equivalency is (not really) surprisingly infantile. Close YOUR eyes Pat, and pin the tail on any old donkey, any old donkey, or pinata, will do ’cause after all, they’re all just the same so why even have hearings just lay down and be quiet, let’s go, (yawn) I’m hungry…you are so lazy…

  4. larsman says:

    Today, son, that’s spelled “buy-party-son”

  5. LuckyCharm says:

    Another blatantly right-wing article by O’Callahan. Question: If it is true that Kagan is “about the law, the whole law and nothing but the law,” and that she’ll be “on nobody’s team,” why should that concern Democrats any more than Republicans?

    Why did Republican senators mention Thurgood Marshall, one of our nation’s greatest jurists, almost 40 times in two days during the hearings? Were they really trying to find out where Kagan stood, or trying to score political points? Never once did they offer any example of a decision of his that they disagreed with, of course.

    Why ask what she did on Christmas Day? What does THAT have to do with anything?

    They call her “anti-military.” Well, is the Constitution “pro-military,” except in Republicans’ minds?

    They say she supports big government, but made no complaint when the court recently decided overwhelmingly in favor of big business, to the detriment of our electoral process. What is mentioned more frequently in the Constitution — government powers, or corporate power?

    They accuse her of having “no real legal experience,” even though the ABA rated her “well qualified” for the position.

    They’re “bothered” by a partial birth abortion memo she wrote decades ago, even though the Constitution is silent on that topic.

    And so on. Can anybody honestly say that the Republicans are not pursuing a political agenda at least as strenuously as any Democrat might be?

  6. Resistance is futile-for it IS the will of Landru…submit to the kaganites or you will be absorbed…

  7. Patrick O'Callahan says:

    One of the enjoyable parts of this job is getting accused of being anti-liberal and anti-conservative over the same piece. Actually, I’m not particularly sympathetic to what either camp has become in the last 20 years.

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