I don't have a dog in the fight over Elena Kagan's nomination to the Supreme Court. I don't support her, but I don't oppose her. My guess is that she's about as moderate as anybody Obama was likely to pick and a lot better than some of the options (e.g., Harold Koh).
But the GOP senate caucus may be getting ready to put up a fight anyway. Brandon Bartels finds one of the GOP's arguments weak:
The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession. They worked to advance their clients’ interests.
Meanwhile, my friend and UCLA law colleague Adam Winkler thinks that Kagan's lack of judicial experience could be a major stumbling block, and that the nomination could end up hurting Obama:
Her opponents are casting her as inexperienced because she has never been a judge and only practiced law for a few years, and that line of attack has purchase with the American people. My own view is that the Supreme Court needs fewer people who were previously judges; some of the finest Supreme Court Justices had never before been judges, like William Rehnquist, Earl Warren, and Louis Brandeis. Judicial experience should not be mandatory for a Supreme Court appointment. Still, casting a nominee as insufficiently experienced and lacking in the requisite qualifications may be the most powerful line of attack in any Supreme Court confirmation battle.
In Advise and Consent, Lee Epstein and Jeffrey Segal examined the history of confirmation battles and found that concerns about experience and qualifications were more difficult to overcome than concerns about ideology. With one especially notable exception, Robert Bork, most nominees who are opposed on the basis of their ideology end up being confirmed. Nominating someone with views similar to his own is one of the perks of being President. But appointing someone who is thought to lack the requisite experience and qualifications can be devastating. Harriet Miers was forced to withdraw because she was seen as an unqualified crony of President Bush; Abe Fortas's nomination to be Chief Justice was rejected, even though he had already served on the Supreme Court, because he was seen as lacking the most important qualification for a Justice, impartiality (he had accepted payments for speeches from private businesses); Douglas Ginsburg still sits only on the D.C. Circuit because, as a professor, he showed disrespect for the law by smoking pot.
Barring any extraordinary revelations, Kagan has the votes to be confirmed. But President Obama doesn't need a squeak-though victory. His presidency is on the ropes already. If he had chosen a John Roberts of the left -- someone with a long background of arguing before the Supreme Court, like, say, a Seth Waxman -- this nomination could have been a political victory for the President. Instead, even if Kagan gets through and turns out to be a terrific Justice, the President will have lost some of the confidence of the electorate that is so precious to him now.
