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NINOMANIA:: 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 ::
:: Sunday, May 09, 2010 ::
I haven't been blogging about Stevens or his replacement, because Stevens's retirement just wasn't news by the time it was announced, and as for the choice of replacement -- meh, one liberal will replace another; the UK election (about which I Tweeted a lot; see left margin) was much more exciting.
I'm glad that confirmation politics is no longer a one-sided battle, the way it was in the 1980s, with leftwing organizations engaged in it, and conservatives passively relying on the good faith of the system, with only Pat McGuigan or Tom Jipping to write a few op-eds. Yes, it's good for conservatism that there are now rightwing groups out there who will oppose any Democratic nominee just as vigorously and just as brainlessly as Ralph Neas, Nan Aron, Ricki Seidman, and their friends will/would attack any Republican nominee (though hopefully not stooping to the same tactics; that's a ref to Anita Hill, natch).
But the fact is, a liberal Democratic president is going to appoint liberal Democratic nominees. The only interesting division, it seems to me, is between those who should properly be seen on the right as initiating the nomination equivalent of World War III, and those who maybe should not. Just as an illustration of what I mean, resources spent opposing Justice So-So were resources wasted; I mean, it's not like the lady is going to be a major influence.
So, among the names floated this time around, were any of them World War III? Yes, at least one: Diana Wood, described at the Huffington Post as "widely regarded as the most progressive member of Obama's short list." And a former Blackmun clerk. I trust former Marshall clerks more: he didn't, as far as we know, extract a specific loyalty oath to the cause of abortion. (Scheidler v. NOW, an opinion by Wood for a unanimous 7th Cir. panel found that RICO applied to pro-life protestors; this holding was reversed 8-1 by the Supreme Court.)
Merrick Garland would be a more confirmable choice. To go quickly over the also-rans: Jennifer Granholm, as a prominent pro-abortion Catholic, would have been a World War III choice; JNap would have been opposed by both left and right; Leah Ward should have been looked at more seriously; Sidney Thomas was a "WW3" who was probably only floated to assuage some western Senators' egos (the way Republican presidents used to float Roger Miner to soothe Al D'Amato, and William Wilkins to give Strom a smile); and Hillary was a joke all along.
Now, since the President appears to be going with Elana Kagan -- a former Thurgood Marshall clerk who would be the first sitting Solicitor General since Marshall to be appointed to the Court -- the question arises, is she a World War III nominee?
Not -- yet.
Oh, she's an ideological liberal, no doubt about it, but in a Washington Post way, not a New York Times way. The NYT recognizes conservatives' existence but treats them as a something between a joke and an oil-spill: ha ha aren't they silly, and omg what are we going to do about them? The WPost, no less liberal than the NYTimes in its editorials and in its reporting bias, nonetheless recognizes conservatives as the opposite team in a game in which more than one player can legitimately exist.
Since I'm reviewing SCOTUS nominees and not newspapers, I'll stop the newspaper comparison here and explain why I think Kagan is more Posty, which is better than being Timesy.
I met her once at a Federalist Society conference (points right there for appearing at one). It was on executive power, and was held early in the W years. Kagan had served in the Clinton admin. She told the conference how, when she got the invite, she said, "Executive power. We're against that now, right?" Laughter. Good laugh line. Perspective. And incidentally, in representing the executive branch before the Court as SG, she has not been at all behindhand, as I read the oral argument transcripts.
What else? Many on the left have taken considerable time and effort to try and knock her down. Is this b/c they really see a Kagan nomination as "their Souter," or is Cornell Law Prof. and blogger William A. Jacobson right in speculating that all this is "simply bait so that Kagan will appear more moderate?"
Next, if Kagan really is "the next Harriet Miers," it will be interesting to see a Democratic president wrap himself around that particular axle.
So on the World War III question, why "not yet" rather than no? Well, read Ed Whelan's careful analysis of DOJ's brief filed last August in a case challenging DOMA, a brief from the SG's office that is unsigned but could not have been filed without SG Kagan's consent. It fulfills, narrowly and reluctantly, DOJ's generally-accepted duty to defend federal law -- but it also introduced, quite gratuitously, policy and constitutional arguments against DOMA. Senators may legitimately raise the serious possibility that she is a stealth nominee on, how to put it, "gay-related issues," which, thanks to Ted Olson's putting the people of California on trial for making his clients cry, may soon be hurtling toward the Supreme Court.
We know that far more Senators voted for DOMA than actually believe in it; that's a given. But the same political prostitution whereby they voted for it in the first place -- and have so far deep-sixed all efforts to repeal it, depite a lopsided Democratic majority and a president supporting repeal -- will also make it hard for them to repeal it indirectly by confirming a DOMA-seeking missile to the Supreme Court. Nor to mention setting the stage for nationwide same-sex marriage under color of equal protection jurisprudence. Seriously -- if the Kagan nomination becomes a proxy vote on these issues, which of them -- Mitch McConnell or Harry Reid -- is going to happier that this nomination took place in an election year?
So let the games commence. I hope this makes up for my long silence.
:: David M. Wagner 10:54 PM [+] ::