Given the purportedly transformative nature of his presidency, which the passage of healthcare reform actually reinforced, one could be forgiven for wondering what is so transformative about President Obama nominating Elena Kagan on Monday to replace retiring Justice John Paul Stevens (90) on the United States Supreme Court.
Especially since the White House has gone out of its way to deny rumors about what would constitute the most transformative aspect of her nomination; namely, that Kagan would become the first (openly) gay person to serve on the Court. Mind you, this is the same White House that has vowed to repeal the self-abnegating policy of “don’t ask, don’t tell,” which applies to gays serving in the military. So much for courting the gay vote….
(For the record, a number of her friends have come forward to testify that Kagan is not gay, which, of course, only raises suspcicions that she is….)
Granted, her sexual orientation has no bearing on her fitness to serve on the Supreme Court. But if she is gay, it would help for her (and the White House) to proudly acknowledge this for the same diversity-affirming reason Obama nominating Sonia Sotomayor as the first Hispanic to serve was so important.
In any case, Kagan is even more assured of Senate confirmation than Sotomayor was. Not least because this Senate confirmed her just last year as Obama’s nominee to become the first woman to hold the post of Solicitor General – the nation’s chief advocate. (Ah, perhaps this is what makes her a transformative nominee….)
Of course Kagan also happens to be supremely qualified, having risen to the top of the ivory tower, from which so many justices have been plucked, when she became the first woman to serve as dean of Harvard Law School (2003-2009).
Yet, predictably, Republicans are spewing partisan criticisms about her not being fit to serve because she lacks judicial experience and would just be a liberal rubber stamp for the Democratic Party’s political agenda. Never mind the inconvenient truth that conservatives on the Supreme Court rubber stamped the Republican Party’s political agenda when they gave the presidency to George W. Bush in 2000 in the infamous Bush v. Gore case. Or the fact that these are the same Republicans who heralded the nomination of the academically and professionally challenged Clarence Thomas as divinely inspired.
Unfortunately, the nation must now endure the patented dog-and-pony show that passes for the confirmation process these days. Ironically, here’s how no less a person than Kagan once decried this process:
When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.
(Kagan, book review of Professor Stephan L. Carter’s ‘The Confirmation Mess’, University of Chicago Law Review, 62 U. Chi. L. Rev. 919, p.920)
Nonetheless, she will blithely participate now in this vacuous (political, not judicial) farce as the star witness. And once confirmed, Kagan (50) will become the youngest member of the Court.
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