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May 25, 2013
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 The Elena Kagan You Won’t SeePosted on May 12, 2010Brace yourself for several months of occasionally biting but essentially meaningless political theater over the nomination of Solicitor General Elena Kagan to the Supreme Court. Underlying the fight will be a fundamental divide between liberals and conservatives over the direction of the court. Thus, many senators who supported Chief Justice John Roberts and Justice Samuel Alito will oppose Kagan, while most who were against Roberts and Alito will be for her. The irony is that the surface similarities between Roberts and Kagan are breathtaking. My conservative colleague Michael Gerson wrote of Kagan: “We know that she is connected to just about everyone in the legal establishment, and most seem to like her.” Change “she” to “he,” and “her” to “him,” and the same sentence could have been written about Roberts. Considerations that didn’t bother conservatives during Roberts’ confirmation (his Ivy League background, the fact that he wasn’t a military veteran, the content of memos he wrote as an executive branch employee) will now be declared highly significant in Kagan’s case. But none of this will matter. In 2005, Republicans controlled the Senate and Roberts’ confirmation was more or less guaranteed. In 2010, Democrats control the Senate and Kagan’s confirmation is more or less guaranteed. That means that the issues underlying the left-right differences over the judiciary, the ones senators will actually be voting on, will go largely undiscussed. Advertisement I say that as one of those many people who have known her for a long time and think she very much deserves to be confirmed. And paradoxically, one of the reasons I admire her involves a question Republicans are raising on which I actually disagreed with Kagan. Back in 2003, a group of law schools went to court asserting their right to deny military recruiters access to their campuses because the “don’t ask, don’t tell” policy discriminated against gays and lesbians. When she was dean of Harvard Law School, she signed amicus briefs supporting the schools’ contention; they eventually lost their case in the Supreme Court. I agreed with the law schools in opposing “don’t ask, don’t tell.” It’s both morally wrong and stupid. But I also argued at the time that the growing separation between the military and other parts of our society, particularly its most liberal and elite precincts, was a major problem for the country. Because closing that divide should be a high priority, perhaps especially for liberals, I felt the schools should welcome the recruiters to their campuses and find other ways to fight “don’t ask, don’t tell.” A couple of years later, I ran into Kagan. After we exchanged warm greetings—her assets include an open and welcoming personality and a lovely sense of humor—I raised the recruiting controversy, saying I thought the universities were wrong. Several things about her response show why she will make an excellent justice. First, she understood we were debating in good faith. She doesn’t turn disagreements into personal quarrels. Second, she spoke with genuine feeling about her respect for the military. When she offers this view during her hearings, as she no doubt will, people should know it’s a sentiment she expressed in private. Third, she made a superb argument based on a careful balancing test: Yes, in a free and democratic society, the military should be able to recruit on campuses; but university officials have an obligation to maintain policies that protect groups that are part of their student population from discrimination. At Harvard Law, she struck this balance by allowing recruiters access through a student veterans group, but not through its main career office. In the end, her argument made clear that we agreed on both of the core imperatives, but weighed them differently. Her approach—simultaneously careful and principled—is what makes for thoughtful judging. Unfortunately, there is absolutely no reason for Kagan to offer the Senate a full airing of just how thoughtful she can be on a host of other issues. She will give the senators no more and no less than John Roberts did. She’d be a fool to do otherwise. And foolish is something she’s definitely not. E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.  TAGS:
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A Cooler Century? Wait and See
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By Rudolfo, May 18, 2010 at 5:53 am Link to this comment
In case you haven’t seen it, from Pat Buchanan’s column ‘Are Liberals anti-WASP’...
“Indeed, of the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.”
Report thisBy omop, May 16, 2010 at 1:27 pm Link to this comment
It seems that the People’s Vocie Website has pulled the commentart
off its pages.
Its already began eliminating any criticism of Elenea….. while still
Report thisexhibiting
Quote for 5/16/2010
‘When once a republic is corrupted there is no possibility of remedying
any of the growing evils but by removing the corruption and restoring
its lost principle.’ - Thomas Jefferson
By omop, May 16, 2010 at 10:26 am Link to this comment
How true. Monsanto defender Kagan on the US Supreme Court!
http://www.thepeoplesvoice.org/TPV3/Voices.php/2010/05/16/obama-s-latest-
Report thismonsanto-pick-elena-kagan#more11480
By dihey, May 15, 2010 at 6:44 pm Link to this comment
Hello Cyrena! Welcome back! I’ve missed you! I seem to remember that you called me an idiot more than one year ago. I believe it was because I had called Mr. Obama an imperialist during the presidential campaign. I never held a grudge against you though because I knew that I was right.
Report thisWith regards to Ms. Kagan we are on the same wavelength. Correct me if I am wrong: she seems to oppose same-sex marriage. True? Wrong?
By dihey, May 15, 2010 at 4:29 pm Link to this comment
And brace yourself also for months of uncritical adulation of Kagan in this regional newspaper called Truthdig. What region you ask? The White House dummy!
Report thisBy cyrena, May 14, 2010 at 8:24 pm Link to this comment
“The irony is that the surface similarities between Roberts and Kagan are breathtaking. My conservative colleague Michael Gerson wrote of Kagan: “We know that she is connected to just about everyone in the legal establishment, and most seem to like her.” Change “she” to “he,” and “her” to “him,” and the same sentence could have been written about Roberts.”
EJ should have preference ‘irony’ with several adjectives. CRUEL would be one. This is exactly why Elena scares me. We have NO IDEA how she will perform on the bench, because she has zero experience to use for that purpose. We have no IDEA what her political ideology is, because she hasn’t written anything, or otherwise taken a stand that would let us know how she thinks about the law and the Constitution.
The itsy bitsy tiny experience that she DOES have, ( exactly one year as Solicitor General and 6 cases, the most important of which she f-in’ LOST!!
Nope, we have no idea of who Elena Kagen is, or how she THINKS in terms of her interpretation of the law. That’s the most important thing to know about her, and we don’t have a clue.
Obama/Rahm blew it with this one, if for no other reason than the fact that there are enough other candidates with the same or more qualifications, and we DO know how they think.
We don’t give a rat’s ass about her ‘connections’ in the legal world. In fact, I’d prefer if she DIDN’T have any….at least not the kind of ‘connections’ I think EJ is referencing. Makes this smell exactly like what it is…a quid pro payoff.
Report thisBy berniem, May 14, 2010 at 4:09 pm Link to this comment
How do you think our exalted founding fathers cooked up this absurd SCOTUS selection process? My guess is that they tried to emulate the pope process but with the elimination of the sequestering and puff of smoke BS to lend an air of democracy to the affair. Personally, I think the most objective and democratic way of doing it would be like the way they choose the Delai Lama; you know, since these guys serve for life as soon as one croaks, the first kid born in any part of US occupied territory would be the next Grand PooBah. Of course someone would have to pinch hit until the kid figures out which end’s up. I’ll have to give that angle some thought; but anyway, even if one of them quits before going horizontal the first born rule could still apply and that would eliminate all these half wit confederates asking stupid stuff like “Would you support abortion if prenatal tests verified that the fetus was Jim Crow?”, or “How many conservatives can dance on the head of a pin?”, or “D’Y'all thank dat Anglish shud ottabe da langage of deese har Ewe Nidid States?”
Report thisBy LadyR, May 13, 2010 at 4:12 pm Link to this comment
(Unregistered commenter)
I rather agree with you there, Ali Baba.
Report thisBy Hammond Eggs, May 13, 2010 at 8:53 am Link to this comment
. . . vacuity and farce
A accurate description of the contemporary United States.
Report thisBy Ali Baba, May 13, 2010 at 5:25 am Link to this comment
(Unregistered commenter)
“We, the Jewish people, control America and the Americans know it.”
Ariel Sharon
Report thisBy ardee, May 13, 2010 at 4:32 am Link to this comment
The confirmation procedure really highlights exactly how broken is our government. As the article so expertly notes those who loved Roberts for his past and positions will defame and decry Kagan’s though they are so similar. Senators will prattle about how Kagan has no experience on the bench most of them unaware that there have been Supreme Courts in our history composed of nine such Justices with no prior judgeships behind them; especially including the one that handed down the Brown V. Board of Education ruling….
I detested Bush 43’s choices for the Court but understood that a President has the right to his own nominees. Someone tell the GOP as some of Obama’s nominations for his administration are still unappointed…..
Of course in the interest of fair play it is worthy noting that some of the criticisms of Kagan from the so-called Left are about as silly as those from the right.
Report this