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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, May 10, 2010 ::
    ACLJ statement on Kagan

    I'm glad this statement called attention to her lack of judicial experience without calling this a disqualifier. After all (as Jordan Sekulow pointed out on the air -- gosh, my students are smart!), Rehnquist was in the same boat. More experience over-all, but not by a crushing margin. If a Republican president sent up a conservative nominee with Kagan's level of experience, I would not accept inexperience as an argument for disqualification; ergo, no way will I do so here.

    She is also a low-paper-trail candidate, b/c her scholarship record is thin and bland, and her advocacy record consists almost entirely of cases where she can plausibly argue that she was merely "advocating" for her "client," the government. (Though see previous post, where I noted, per Ed Whelan, that her office's subtle undermining of DOMA, which it was nominally defending, was unnecessary and probably significant.)

    Jordan Sekulow was absolutely right when he Tweeted that the notion that Kagan will be less liberal than Stevens is sheer spin: the legal left has drifted further left since 1975, and Kagan will be seen to have drifted with it, and to drift with it further. This is true, however, of almost anyone Obama would conceivably have appointed. If Republicans want to make an issue of it in this election year, draw the process out, and then make Obama re-think his SCOTUS politics in the face of a very different Senate next year, well, that would certainly be interesting.

    The Federalist Society has a grab-bag of Kagan resources here.

    :: David M. Wagner 12:23 PM [+] ::

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