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An Insider's View of the Spin about Elena Kagan, President Obama's Supreme Court Choice
As soon as I heard that Elena Kagan was President Obama's choice for the Supreme Court's latest open seat, I knew the first criticism of opponents would be that she "lacked judicial experience." That does not make her unqualified for this role, given her exceptionally distinguished career as a lawyer and policymaker. It does, however, reveal the deeply disingenuous games Republicans are playing with the U.S. judicial system. I want to tell you how that is so, based on my prior experience as the lead attorney on the Justice Department Working Group on Judicial Nominations and as the former Chief Counsel for Nominations for the Senate Judiciary Committee.
Republicans' Judicial Chess Game Strategy
I worked on Kagan's nomination to the D.C. Circuit in the late 1990s, along with colleagues at the Justice Department and in the White House Counsel's Office, where she had served with distinction. Kagan was nominated in June, 1999 by President Bill Clinton for that court, considered a stepping stone to the Supreme Court. At that time, I had been serving on the Justice Department's Working Group for about two years and, as was well documented at the time, the Senate under Republican control was refusing to give hearings to many of President Clinton's judicial nominees in order to preserve open seats for the next president to appoint, and deny potential Democratic Supreme Court nominees the opportunity to obtain "judicial experience," as part of the right-wing's elaborate chess game strategy to win control of the federal judiciary and our nation's future. Kagan was one of the victims of that partisan gaming of the system, and of the effort that began under Presidents Richard M. Nixon and Ronald Reagan to appoint ideologues to the bench to help roll back rights that were finally honored by the Supreme Court when Earl Warren was Chief Justice.
Warren had been a Republican presidential candidate, and served as the former governor of California. He presided over the internment of Americans of Japanese descent, and formerly served as a tough prosecutor in Southern California. After he was appointed to the Supreme Court, however, he carefully considered claims by Americans that the Constitution's promises in many areas -- the right to "equal protection" of the law, the right to an attorney, the right to be free from "unreasonable searches and seizures" and other rights expressed in the Bill of Rights -- had been violated. He dared to rule in favor of ordinary people in many instances, earning the ire of right-wing Republicans. In my view, although he has been characterized as one of the most "liberal" judges, he was actually "conservative" in the sense of seeking to apply the plain language of the Constitution and its promises to the American people yearning for them to be made true. I also consider his work on the court to be in the best traditions of "progressive" judges for these same reasons, that is, for making decisions based on common sense and in favor of ordinary people whose destiny was intertwined with our nation's progress in defense of liberty. Translated, this means Warren defended fundamental human rights and the dignity of individuals.
Blockading Democratic Nominees
As I witnessed over a decade ago, Republican leaders like Mitch McConnell, Jon Kyl, and Orrin Hatch were determined to allow as few Democratic choices for the appellate bench through the Senate as possible. In 1999, the year Kagan was nominated to the D.C. Circuit, only seven of 25 appellate court nominees, or 28 percent, were allowed to be confirmed. The Senate Judiciary Committee refused to give Kagan a hearing either that year or the following year. In all, during the two years of the 106th Congress, Republicans allowed only 15 out of 34 appellate nominees of President Clinton to be confirmed. That blockade allowed President George W. Bush to inherit these open seats on the bench, and then almost immediately Republicans claimed there was a "crisis" in the courts due to the number of vacancies because almost twenty percent of the appellate judicial positions were vacant, largely due to their obstruction and delay tactics.
We pressed repeatedly for a hearing for Kagan and all the other stranded judicial nominees. The Republicans refused, coming up with all sorts of excuses. For Kagan, the main excuse they gave was that she lacked judicial experience. Yet shortly after President Bush was sworn in, he nominated John Roberts for the seat to which Kagan had been nominated. Roberts had no judicial experience, but that did not stop Republicans from demanding his confirmation occur as quickly as possible. I had very deep concerns about Roberts' ideological agenda for the bench based on his past actions -- concerns that have been validated by his decisions on the Supreme Court, and especially his role in the deplorable decision in the Citizens United case, which handed corporations First Amendment free speech protections and thus the ability to spend unlimited money for or against political candidates.
When the Republicans regained control of the Senate in 2003, they quickly approved Roberts' nomination. He sat on the D.C. Circuit for just two years before President Bush tapped him for the Supreme Court after the 2004 election -- hardly extensive judicial experience. Had the Republicans not blocked Kagan from the judicial seat they rewarded Roberts with on the D.C. Circuit, she would now have over eleven years of judicial experience under her belt and they would not have any such self-serving claim to make about her experience. But that's why they blocked her in the first place, to try to keep her off of the Supreme Court.
I'm certain some of them also objected to the fact that she was 39 years old at the time of her initial nomination to the D.C. Circuit. Yet shortly after President Bush was sworn into his first term, he nominated Miguel Estrada to another vacancy on the D.C. Circuit that Republicans had kept open by blocking Allen Snyder's nomination to that court by President Clinton. Snyder was over 50 years old and had extensive experience as a litigator, but that was not good enough for the Republicans. When Bush came to power, he promptly nominated Estrada to the seat for which Snyder had been chosen, even though Estrada did not have half as much experience. Estrada, like Kagan at the time of her nomination to the D.C. Circuit, was 39. This makes it quite plain to me that the age and experience claims made back in 1999 were just subterfuge to conceal the Republicans' true effort to try to keep Kagan, with her tremendous intellectual abilities and excellent reputation, off track for the Supreme Court.
It is true that when I was working as the Chief Nominations Counsel for Senator Patrick Leahy, I strongly urged and staffed the effort to block Estrada's confirmation to the D.C. Circuit, and I stand behind that work. Based on serious concerns raised by Estrada's supervisor about his hostility to firmly-settled legal precedents (translated: the likelihood he would use his role on the court to try to re-write the law to suit his political leanings) we requested copies of his Justice Department memos. The Bush Administration utterly refused to share them with the Senate Judiciary Committee, despite ample documented precedent that prior administrations had shared legal memos of nominees, including Robert Bork's memos, William Rehnquist's memos and William Bradbury's memos.
Now, with the benefit of hindsight, I think it is quite clear that the reason the Bush Administration refused to acknowledge precedent and accommodate the Senate's request for Estrada's memos was because it feared accepting that precedent due to explosive memos approving torture and other illegal activities that the Bush White House sought from John Yoo and Jay Bybee at the Justice Department during Bush's first term in office. In fact, despite my opposition to Bybee (based on concerns before the torture photos and memos broke), he was confirmed to the Ninth Circuit, but Estrada's nomination was successfully filibustered based on the refusal to share the memos and resolve allegations about whether he would be a fair judge and other serious concerns that arose during his confirmation hearing. At the time, we heard that he fought with the Justice Department to let some of his memos be shared with the Senate, but the White House refused, content to make him a martyr and call the Democrats names for blocking his confirmation. When he withdrew his nomination, he criticized both political parties. As an aside, Senator Bob Bennett of Utah, who was most recently defeated in a Republican primary in Utah for not being extreme enough, was the only Republican Senator who even dared to publicly propose a compromise of sharing a small sampling of Estrada's memos in order to secure his confirmation. That idea was quickly shut down by the White House, which had far more damaging memos than Estrada's that they wanted to try to deep-six.
The "Policy Work" Objection
But back to Kagan. The other objection we heard was that she was policy person who was somehow tainted by working in the White House. She had served in the White House Counsel's Office and also on the White House Domestic Policy Council. Yet during President Bush's first term, he nominated Brett Kavanaugh to another vacant seat on the D.C. Circuit. Kavanaugh was a year younger than Kagan, and he, too, had worked as a lawyer in the White House's policy realm and in politics. The difference was that he worked for a Republican White House. Kavanaugh also worked for Ken Starr in the extremely partisan, political effort to try to remove President Clinton from office through impeachment. But none of that was considered too political for a federal judgeship, once the Republicans were in the White House and in control of the Senate. We were able to block this extreme partisan's confirmation during President Bush's first term, but after the 2004 election (and after I left the Senate staff to go work for the American Civil Liberties Union on national security and Fourth Amendment issues), Kavanaugh was confirmed to the D.C. Circuit.
The "Qualifications" Objection
Observing this history of the nominations to the D.C. Circuit and the Supreme Court makes me deeply skeptical of the manipulative claims made about Kagan's qualifications to serve on the United States Supreme Court. After her confirmation was blocked, she was chosen to serve as the Dean of Harvard Law School, the first woman to serve in that role at one of the very highest ranked law schools in the United States and the world. After President Obama won election, she was nominated and confirmed to serve as the Solicitor General of the United States, to argue cases before the U.S. Supreme Court. Those serving in that role have often been called the "tenth justice" in aid of the nine who sit on the nation's highest court.
At the end of the day, I don't know how Kagan will rule on disputes that come before the court, or whether she would take the same view of the law as I do, but having observed her career, I have confidence that she is no ideologue like Roberts and Alito. She may well be a so-called "moderate." I certainly hope and believe she would not blindly follow the extremism of the Roberts Court in rewriting the Constitution to give even greater power and influence to the richest and most powerful forces in our society, the big corporations.
But regardless of her views on that set of crucial issues for our democracy, she will not be a "swing vote" any time soon. The five guys in the majority in that decision are relatively young as far as Supreme Court judges go, and they might very well be a solid five-member majority for decades. If Kagan is confirmed, she may be in the minority on such issues for years to come, or she might not. I do not believe she has an agenda in the way that John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas, and their mostly "reliable" fifth vote, Anthony Kennedy did when they were chosen to serve on the Court by the right-wing of the Republican party. Despite all the right-wing rhetoric against the Clinton nominees like Kagan, the truth is that President Clinton earned the ire of progressive groups for refusing to use the nominations process to appoint people as far to the left as the Reagan and George H.W. Bush nominees to the court were to the right. That decision to turn the other cheek, so to speak, and choose moderates who did not have an ideological agenda, was almost mocked by George W. Bush and his administration, who immediately returned to the business of trying to get ideologues on the bench to take over the judicial system and alter the ground rules of the law in our country. So despite all the rhetoric and spin, it's not about experience, and it's certainly not about fairness when it comes to the right-wing effort to re-make our country through the courts.
The "No Judicial Experience" Objection
I do know for certain that judicial experience is no substitute for actual wisdom or genuine fairness. Roberts and company have surely demonstrated that. Roberts' twenty-four months on the D.C. Circuit did not transform him into a fair judge or the neutral umpire he claimed to be in his Supreme Court confirmation hearing. Alito's sixteen years on the bench before Bush put him on the Supreme Court did not make him less of an ideological brother of Antonin Scalia. Clarence Thomas' one year on the D.C. Circuit did not transform him into a fair or neutral judge of disputes, nor did the twelve years Kennedy spent as a judge make him into someone who was not pretty reliable to the right wing with a few notable exceptions.
In contrast, Sandra Day O'Connor, who had no federal judicial experience, turned out to be more of a fair pragmatist than I have sometimes given her credit for. As a judge on the Supreme Court, I credit her experience in state politics as making her more willing than her brethren to see more than one side to an issue, unlike the five guys in the majority right now. And there are other truly great justices who had no judicial experience--federal or state--but who demonstrated in case after case that they were not beholden to the powers that be, such as Chief Justice Earl Warren. Such men illustrated through their decisions that they understood the tremendous power of the government needed to be restrained for the sake of liberty and posterity -- not that power had to be deferred to and expanded, whether that meant executive power or corporate power.
Call Out the Fake Claims and Consider What Really Matters
So let's call out these fake claims of qualifications, like judicial or litigation experience, and say out loud that they are not adequate proxies for wisdom, compassion and fairness. Those are the traits that really matter in giving a person the lifetime role of sitting in judgment of other people's disputes, of cases that affect whether people will live or die, whether their equal rights and human dignity will be honored or denied, and whether America will fulfill its promises set out in the charter of rights of human beings, or fail in its commitment to be a place of liberty and justice for all.
Lisa Graves is the Executive Director of the Center for Media and Democracy.