Saturday, May 15, 2010

Considering Kagan

Every so often, I make my fellow Conservatives angry at me. Sometimes because I lack tact in how I put things, and sometimes because I see things differently. The fact is, from where I sit, most conservatives think as individuals while liberals are more prone to group-think. One good example of this is the 2005 controversy over the nomination of White House Counsel Harriet Miers to the Supreme Court,
by President George W. Bush. Like Solicitor General Elena Kagan, Miers’ resume and credentials as a potential SCOTUS Justice seemed thin and dubious for someone whose decisions could direct the nation’s course more than any elected official, but where Democrats and Liberals have so far been supportive of Kagan simply because Obama nominated her, Republicans and Conservatives harshly criticized Miers’ credentials and forced her withdrawal before even one minute of confirmation hearings. At the time, this behavior by radicals was offensive to me, and I still believe it contributed to a split in the party which led, among other things, to the Republican-led Congress abandoning the President and the public rejecting the GOP as the rightful leader of the government. Not because people rejected Conservative principles, but because true Conservatives do not launch character assassinations and sabotage their own party for personal gain, as happened in the Miers’ nomination controversy. This does not mean that Harriet Miers was qualified to serve on the United States Supreme Court, but she deserved her nomination to be considered and addressed on her merits, not according to whether she knelt at the altar of political correctness, even on the Right. I warned at the time that the behavior of Conservatives was in contrast to their own stated standards, and even after Mier’s withdrawal and Alito became the new nominee, it became clear that hard-liners intended desired to continue punishing the less-than-pure. Even as they handed the Left a weapon that cost them Congress a year later, and the White House in the next Presidential election.

So, what does an old ugly incident from 2005 have to do with Elena Kagan’s nomination? The same forces and bigotries are in play, but this time the Conservatives need to be careful in their evaluation of Kagan’s qualifications, because an objective, reasoned examination could be very helpful, not only in countering President Obama but also in demonstrating a much-needed maturity in Congress, but the same old pettiness and sniping that has defined the party in the past five years would send a signal to America that electing Republicans and Conservatives would not be a solution to the mistakes and blunders of Democrats and Liberals since 2006. The chances of Democrats and the Left remaining in control of Congress rise strongly if Republicans and Conservatives play into the caricatures the media has already cast for them. As bloggers, we have a responsibility for careful consideration of our own tactics and methods:

It is not right to mock Solicitor Kagan on the basis of her appearance.

It is not right nor is it valid to bring up allegations of personal sexual orientation or possible behavior outside mainstream expectations (for crying out loud, has everyone forgotten how the Left cast Justice Thomas during his confirmation hearings?)

It is not right nor helpful to begin examination of Solicitor General Kagan as an enemy from the beginning.

While I agree that there is reason to be suspicious of Kagan simply because of Obama’s class of friends and colleagues, the only course any Conservative should consider is to maintain objectivity and to seek and discuss Kagan’s actual paper trail, statements in public and her responses to key issues that would come up in her potential role as a Justice. Kagan’s writings as editor of “The Princetonian” would be useful and valid, as would her articles at the “Harvard Law Review”. It would be helpful to know her opinions, in detail, of Abner Mikva, for whom she was a law clerk, and of Thurgood Marshall, for whom she also served as a law clerk. Since Kagan was on the faculty at the University of Chicago Law School , it is likely that this is where she first met Barack Obama, although we need more evidence on that point. It may also be helpful to learn Kagan’s reactions to the Senate Judiciary Committee’s decision not to hold hearings on her nomination by President Clinton in 1999 to the U.S. Court of Appeals, and any documents that committee may have reviewed. In short, while Kagan has never served as a judge, there are documents which could establish reasonable estimates of Kagan’s judicial foundation and judgment. She should be judged on those documents, her answers to the confirmation committee in context of her experience and constitutional comprehension, but never on any subjective or petty tactic. There is even more at stake than may be apparent to Conservatives.