Walter Rhett

The Senate Judiciary Committee vs. Elena Kagan

In Perlo on July 2, 2010 at 12:34 am
Charleston, SC 

Members of US Senate Judiciary Committee. Photo by radiotalknews; usaed under creative common license.

 
 
 
 
 
 
In less tumultuous times, I might be more concerned about Elena Kagan’s nomination. Having clerked for Justice Thurgood Marshall, that with her wit, warmth, and engaging personality she could not find minority candidates to qualify for and accept available positions at Harvard Law during her tenure as Dean is glaring and difficult to ignore. (Even CNN has the affable and well-reasoned conservative, Ron Christie.) Unfortunately, Republicans, while opposing discrimination are indifferent to affirmative action, and Democrats gave wide berth to Dean Kagan’s ineffectiveness in broadening her faculty’s diversity.

Instead, Sen. Sessions beat a dead horse during the hearings, with much thanks from both sides. He micro-debated the non-issue of job recruiting by the US military at Harvard, disputing whether it was fair that the military recruiters were subjected to Harvard’s version of “don’t act to challenge Congressional authorization that denies people with an intra-gender sexual orientation the right to be open members of our armed forces; instead move recruiters to another building, hold our noses and open our doors.” The simple shift of locations dramatically concealed Harvard Law’s accommodation with the policy of “don’t ask, don’t tell.” Sen. Sessions missed the opportunity to inquire why, if Dean Kagan inherited this position, she did not lead a review to bring a legal challenge to a stature she felt discriminated; he should have asked in fact, is she tough enough to confront issues head-on that seem to violate original intent and non-discrimination statures, even if the battle and its results would be wildly unpopular.


Elena Kagan listening during her confirmation hearing.
Photo by talkradionews; used under creative commons license.
The committee did an excellent job of talking past Ms. Kagan much of the time, to share for the public its own views on Supreme Court decisions, judicial philosophy, and dramatically debating in remarks its differences. I felt most of the time, Ms. Kagan was a moderator, offering background and context for the discussion, showing charm and intelligence, as she guided the opposing fractions of Senators through their oral arguments which were often removed from a review of her qualifications as a nominee for a lifetime appointment.

The background noise of states rights, talk of nullification, secession, state legislative changes to federal authority, the delegitimization of political authority seemed to push the Senators to safe bu passioned discussions of pet topics. Actually, delving into the current ambiance of the vox populi and its reading of constitutional law along with the willingness of many States to challenge the Supremacy clause in Article VI would have made a fascinating, free-wheeling discussion of law, its relationship to governing, its role in society, the use and limits of executive power (eg. the Barton apology for BP’s voluntary establishing an escrow account; BP’s swiftest and most transparent action to date.) Sen. Graham came closest to engaging Ms. Kagan in this type of discussion in his questions. Other senators stuck to a narrow review of memos and briefs. Everyone praised the progress of women.

Ms. Kagan was certainly a breath of fresh air. But the Senate committee missed a real opportunity to give Ms. Kagan a true chance to shine.

July 1st, 2010
9:34 am

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