Feb 10, 2009

Elena Kagan's Confirmation Hearing

Today, unreported (as are most important legal issues), Elena Kagan, President Obama's choice for to be the next Solicitor General had her first confirmation hearing before the Senate Judiciary committee. This is important for many reasons.

First, Kagan is extremely liberal, which will mean a significant shift in government positions, both in the cases it chooses to appeal and in the amicus briefs it chooses to file. I, of course, as a more 'conservative' (read: textualist) interpreter of law, don't so much like that. Some others will. I have some other issues with her, not the least of which is that she has never argued a case before any appeals court (including the big 'c' Court). Given that the entire job of the solicitor general is to argue cases on behalf of the government before the Court, it doesn't seem to be the best of ideas to give her the big guns. I in no way doubt her intelligence, though. She is certainly capable, having clerked for Justice Thurgood Marshall and been dean of the Harvard Law School. In some ways, though, especially in the rough-and-tumble world that is Supreme Court oral argument, it is probably best to have a least a little experience before advancing to the Big Leagues. Maybe she'll turn out to be excellent in oral argument; I'll certainly be paying attention.

The second, and possibly more important, reason that this is important is that she has been mentioned as being on the short list for a possible Supreme Court vacancy. Given Ruth Bader Ginsburg's recent pancreatic cancer diagnosis (though caught early, the disease still has only a 5% survival rate within five years), this is especially pertinent. If Ginsburg were to go, Obama would almost certainly appoint another woman (sorry, Cass Sunstein; you'll have to wait until Stevens dies or Souter resigns). Kagan may be the one. Again, however (though this may be putting the cart before the horse), I have a pretty major issue with someone who has never been a judge being appointed to the Supreme Court. Remember Harriet Miers? The woman was certainly a fine attorney (you don't become White House Counsel without knowing something). However, she bombed, and I mean bombed, her pre-confirmation meetings with senators. She had never been a judge or argued before the Supremes so was caught unaware with her nomination. Every member on the current court had been a judge before becoming a justice. There is a reason for expecting the ultimate arbiters of the constitutionality of law to be experienced, and we'd be fools not to demand that.

I have little doubt that Kagan will be confirmed as SG. I have graver doubts about whether she could win appointment to the Court, if a vacancy should arise before she can establish herself much within the Justice Department. I don't know how close of a rein Eric Holder will hold 'er to (ha, puns), but it will be interesting to see where the SG goes from here.

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