elena kagan – it could be worse

How does it add anything to a SCOTUS nominee’s qualifications when it is noted that a nominee’s life story is inspirational, a real American rags-to-riches success story, and so forth and so on?  While the life experiences of Elena Kagan and Sonia Sotomayor are certainly a made-for-TV movie waiting to happen, they have nothing to do with being a Supreme Court justice.  If anything, those life experiences tend to suggest a certain subjective POV that leans toward one specific ideological perspective – and it’s not one conservatives can support.  But that’s hardly a surprise.

It’s difficult to believe that President Obama doesn’t know exactly what he’s getting in Elena Kagan. What we know about her so far is enough to suggest to me two things – one, she leans progressive; and two, she doesn’t have any judicial experience.  The latter doesn’t technically disqualify her from serving as a Supreme Court justice, as others have accurately pointed out.  However, this gives greater importance to her writings and speeches, and her actions as a law professor.   Those evaluating her fitness for this job will have to look at everything she has said and done in the past, and try to accurately predict which way she will go as a Supreme Court justice.  This evaluation will be completed before Elena Kagan gets her first question in the Senate confirmation hearings.

Many Democrats have already started lining up behind the President’s pick, while Republicans are promising to ask hard questions that are unlikely to be answered.  That’s the way this kabuki theater works.  Actually ask hard questions of SCOTUS nominees from the opposing party that you will never get a straight answer to, and in the end the nominee gets through, unless he/she is fatally flawed like Harriet Miers.

Honestly, I’m ok with this.  Many pundits find their latest column idea by disparaging the way nominees are told to handle their confirmation hearings.  Since both sides have already made up their minds about the nominee before the hearings ever take place, the questions will always be a formality.  When was the last time we learned something useful from SCOTUS confirmation hearings?  Bork.  Right.  If straight-up answers keep qualified candidates from making it to the high court, then I’m all for the non-sequiturs.  Besides, it’s not likely that anything said in the hearings would turn a Democrat against Elena Kagan, and since the Republicans could very well be so open-minded their brains fall out, they could decide that there’s no point in opposing a nominee when her confirmation is more than likely.

this and that


Judge Sonia Sotomayor should be evaluated based on her work experience and judicial record, not on her compelling personal story.   At the very least, Republicans should ask a few hard questions before allowing this confirmation to proceed through the Senate.

On the CIA/Cheney:

If the CIA doesn’t have plans (secret or otherwise) to take down terrorists, I ask, “Why the heck not?”  That’s part of their job, isn’t it? And yes, I would support secret terrorist hunting and not informing Congress of those plans if the Obama admin had such a program.   This should be a point of agreement for both Republicans and Democrats.

On competition in health care:

I don’t oppose competition.  I oppose a competition in which the deck is stacked in favor of the government’s entry.  I also dispute the notion that the post office is a brilliant example of how government competition could improve the service or quality of health care.  UPS and FedEx pushed the USPS to improve its services, not the other way around.  And BTW, the USPS is still inferior to both.

being the opposition

I’m sure there are many good reasons to oppose President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court.  What concerns me is the decision-making process that produced this nominee.  We seem to be more interested in a candidate’s personal story or appeal to important minority groups than his or her ability to, you know, actually do the job.  It’s good to have more minorities holding positions of power in our country.  But I’m not sure that President Obama looked far enough before picking this nominee.  In general it’s a good idea to spend significantly more time on this choice than it takes to order a latte from Starbucks.  Her record as a judge should be the most important factor in determining whether she would be a good choice as a Supreme Court justice, not whether she has “empathy” or whether she appeals to the right constituency groups.  That doesn’t appear to be the case here.  But at least she paid her taxes (We think).

Should the Republicans vote against this nominee?  Why not?  They have nothing to lose by doing so.   It’s clear that this nominee shares the President’s judicial philosophy, and that’s enough reason for me.  There have also been questions both from the left and the right about her judicial record that suggest an unsuitability for the high court. However, the Republicans do have to be careful in their opposition, because even legitimate criticisms of her could be considered as an attack on her as a minority.  We are already seeing this in the national media, and there’s nothing we can do to change the narrative of the MSM.  That’s just the way it is for the party out of power these days, folks.

out of touch

In case we have forgotten about the severe left-ward bent of the New York Times, a new editorial puts in all back into focus.  In “A Supreme Court on the Brink” they worry about the future direction of the Supreme Court, specifically that a McCain administration could undo all the liberal decisions the Supremes have made over the years, including Roe V. Wade.  This is a needless fear.   Not even Reagan managed to accomplish that goal, and McCain can hardly be accused of such extreme conservatism.  McCain will keep his word on this, if not on anything else, but conservatives shouldn’t get their hopes up that McCain could get a Samuel Alito or John Roberts through the expected Democratic majority in Congress.  Unless the Democrats inexplicably cave in, there’s no way this will happen.  A more plausible scenario is that McCain attempts to put through judges the base approves of, and he is brutally rebuffed by the Democrats.  Then he gives in and nominates someone like Harriet Miers.  Yikes.  Of course this all assumes McCain beats Barack Obama.  Is the New York Times worried about their golden boy’s chances in November?  Say it ain’t so guys.

Some of the Court’s rulings were questionable, and the assessment of their overall record this year as “muddled” is a fair way of describing it.  Even so, I shouldn’t be surprised that the New York Times wants to be on the record supporting the Court’s decision denying the death penalty to the child rapist.  The ruling was misguided to say the least.  If we are going to have the death penalty as a punishment for crime, not too many crimes are worse than child rape.  The child will be scarred for life.  I’m not sure that life in prison is a sufficient punishment for what the child went through at the hands of this monster. Then there’s the more well-known decision to give habeas corpus rights to Guantanamo detainees who — may I remind everyone — are not American citizens.  It’s a bad idea to give foreigners access to American courts, and I still haven’t heard a great explanation of why Constitutional rights and protections can be given to non-citizens.  At least the New York Times is consistent in their worldview and we know what to expect from the majority of their columnists and their op-eds.

Those of us on the right always point to stuff like this as a example of how out of touch the mainstream media is (and the New York Times usually provides most of the ammunition for these critiques).  If we spent half as much time focusing on what we can do to fix what the Republican politicians have broken, we might have more of a reason for confidence going into November.  As it stands now, we have an uphill climb ahead of us.

another bad precedent

i’m not talking about roe here. i’m talking about the bork precedent. what happened to judge bork during his confirmation hearings is the reason why we have the carefully scripted SCOTUS nominee answers today. i’m just waiting for alito to forget decorum for a second and say to these long-winded senators, “wake me up when it’s my turn to say something.” while there may have been legitimate questions in there somewhere from the democrats, they didn’t really want to know the answers to those questions. there’s already a filibuster taking place, and both sides are engaged in it. if anyone is expecting any breaking news out of this hearing, they will be sorely disappointed.

some excerpts from FNC:

Of course, almost nothing that occurs during televised confirmation hearings comes close to being spontaneous, said Richard Davis, author of “Electing Justice: Fixing the Supreme Court Nomination Process.”

“Interest groups want Alito to do what Bork did, and take on Kennedy and [California Democrat Dianne] Feinstein, but Republican senators and the White House know that is not how it works,” Davis said. “You don’t do a head-on confrontation with these senators. You respond in vague statements, nod your head in response.”

this is the end result of judge bork’s confirmation hearings. both republicans and democrats are complicit in the game. they both pretend to ask questions (while making their own case pro or con) and pretend to want the answers. in this environment, how could SCOTUS confirmation hearings have any other outcome than they have now? if you want unvarnished straight answers from the nominees, then both sides must agree to base their votes on the nominee’s experience instead of his views on roe v. wade. don’t expect that to happen any time soon.

In fact, Democrats may find that is the only argument they have for rejecting Alito. Sen. Patrick Leahy, D-Vt., the ranking member on the panel, said in a statement after day two of the hearing that Alito needs to be more candid.

“Fresh in our memories and experience is the example of the testimony of Chief Justice Roberts, whose consistent answers helped build a record that gave many of us who voted for him the confidence in his candidacy that we needed to have. Judge Alito needs to do more than distance himself from his early, troubling writings and views – he needs to explain why his views are different today and that what he says is not simply the pledge of an eager applicant trying to win a job,” Leahy said.

ok. so how much more candid was justice roberts than judge alito? let’s see the numbers from bench memos at NRO. it’s an interesting breakdown.

Judge Samuel A. Alito Answered A Higher Percentage (95%) Of Questions On His Opening Day Of Questioning Than Justices John Roberts (89%) Or Ruth Bader Ginsburg (79%) Did During Their Full Confirmation Hearings.

those poor democrats. they are trying so hard to find something damaging on this guy and they have been unsuccessful so far. they know they are fighting a losing battle here, and their only recourse is to make sure their left-wing special interest constituencies are still in their corner. forget what the rest of us think, because we don’t seem to matter to schumer, kennedy, feingold, and biden.


Justice vs. politics–LA Times
Alito must avoid being ‘Borked’–sfgate.com
bench memos–NRO

she was right the first time.

pop quiz:

who said the following:

“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but – except when it comes to abortion – the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade.”

was it sam alito, or scalia, or clarence thomas? not so much. try this person.

more interesting reading on judge alito:

Charles Krauthammer: Judge Alito vs. Roe vs. Wade
ed whelan of NRO’s bench memos: Re: Alito’s Advice on the Thornburgh Abortion Case

who says people can’t change their views on roe? not that alito will, necessarily, but here’s some evidence that it’s possible. more interesting and compelling blog posts to follow this weekend. keep reading. scroll down for more on iraq and very cute panda pics.

SCOTUS confirmation hearings and democratic hypocrisy

let’s talk about some history here. throughout the whole history of the supreme court’s nomination and confirmation process, the battles over proposed nominees drew no blood and took no captives. this continued through the confirmation hearings of justices ginsburg, breyer, and o’connor. source material for the following history comes from here. (also linked below)

what happened in ginsburg’s hearings has set a precedent for the confirmation hearings of both chief justice roberts and future associate justice alito by restricting the amount of information that nominees will reveal in their confirmation hearings. (don’t expect this to change any time soon…) justice ginsburg was president clinton’s pick for the court in march of ’93. some of the senate republicans such as william cohen of maine did have some ideological concerns with her. here’s the test cohen applied to her nomination, courtesy of HNN. “…Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee’s philosophy is ‘so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament.'”

that’s really the important question the senators should be asking about all potential SCOTUS nominees. is the nominee qualified to sit on the court? another question would be: does he/she have the judicial temperament to apply the law impartially in all cases they may hear on the court, regardless of their ideology? that’s the kind of justice who should be on the court, and i believe that based on his past history and judicial record, judge alito can be this kind of justice.

apparently, cohen and the other republicans found that justice ginsburg’s nomination passed that test. even though she answered a limited number of questions about ideology, this didn’t seem to bother the republicans all that much. she was confirmed by the senate by a vote of 96-3 (with Sen. Hatch being one of the opposing votes) even though the republicans absolutely knew what they were voting for. so much for republican obstructionism in that hearing.

justice breyer is another good example. the republicans, for all intents and purposes, also allowed this justice to be confirmed without much of a fight. they had some concerns about him too, including a lack of commitment to private property rights, his opposition to prayer in public schools and at public schools’ graduation ceremonies, not to mention a possible conflict of interest involving lloyd’s of london investments. even under that long list of concerns, he managed to garner only 9 opposition votes.

then there is o’connor herself. she also had no problem getting confirmed to the court. the vote was 99-0…no significant opposition to her nomination was present in the final vote. even though it was pretty clear what her views were on certain issues, it didn’t keep her from sitting on the supreme court. it’s interesting to note that at the conclusion of her tenure on the court, the following comments were made about her.

from the WaPo:

“We have a living Constitution. Her name is Sandra Day O’Connor, and thank God she’s retiring,” Kevin J. “Seamus” Hasson, founder and president of the conservative Becket Fund for Religious Liberty, said yesterday.

“Her support for separation of church and state was not consistent,” said Barry W. Lynn, executive director of the liberal Americans United for Separation of Church and State.

here you have the predictable conservative response to o’connor and the supreme court rulings she made. may i just take issue with fellow conservatives here for complaining after the fact here? a good time to make an issue out of it would have been before she was confirmed, not after. but i digress…

so barry lynn wasn’t happy with o’connor either. i’m not sure exactly what kind of justice he would ever be totally pleased with. if he wasn’t pleased with john roberts, it’s not hard to predict what he would say about judge alito. in general, i tend to support anybody opposed by barry lynn, just on principle. but i think there are some good arguments to be made for judge alito. it may be true that he shares many of my beliefs and values, but i also believe based on his past rulings that he would apply the law based on precedent and not on ideology.here’s the point. if ideology didn’t keep ginsburg, breyer, and o’connor from being confirmed by the senate, the standard shouldn’t have changed for chief justice roberts or judge alito.

why is it only acceptable to confirm justices who mirror the views of the democrats, regardless of the nominee’s experience or qualifications? if that’s not what the democrats are arguing, perhaps they need to be more clear about what kind of justice they would accept. it doesn’t appear that they would accept someone with a strict interpretation of the constitution under any circumstances, so all this distress and disappointment with the Bush pick doesn’t mean a heck of a lot. they knew what was going to happen, and they will oppose the president in this, just the way they have been doing throughout his presidency.

if there are valid concerns about judge alito’s record, let’s put them on the table. i have no problem with examination of his record and past rulings to try to determine how he might rule on the court. that’s a fair critique to make. if there are logical reasons why judge alito wouldn’t be qualified enough or competent enough to sit on the court, then that’s a legitimate argument not to confirm him. otherwise, the senate should do what they have done in the past and judge ideology in the context of cohen’s test. if justices ginsburg, breyer, and o’connor could pass it, there shouldn’t be any problem with judge alito.

michelle malkin has more specifics on alito here.

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the wizard of d.c. (a very bad parody)

now playing- over the rainbow
(not that i could improve on l. frank baum or anything… some extreme liberties taken with the book and screenplay here)
the cast
harriet miers as dorothy
george w. bush as the cowardly lion
pat buchanan as the tin man, a.k.a. the heartless republican
harry reid as toto, a little yappy dog
the democrats opposing president bush will for the purposes of this parody be played by munchkins
evil conservatives will be played by the flying monkeys
and starring as the wizard of d.c. (who else?)- kArL rOve!
SCENE 1 (in which we learn that all is controlled by the wizard of d.c. except one important decision):
we see a house inconveniently parked on top of an evil witch. we see someone opening the door of the house, and stepping outside into a foreign land, where everything is suddenly in color and we can now see the difference between good characters and bad characters. the cowardly lion wanted to meet the munchkins (and really, who wouldn’t?) so he appears at the beginning of the scene.
DOROTHY: who am I? how did i get here? i don’t remember buying those red shoes, but they sure don’t match this suit. this is all the cowardly lion’s fault. but i shouldn’t worry…the wizard will fix everything.
now all i have to do is find him.
MUNCHKINS: (singing) follow the yellow brick road. follow, follow, follow, etc
DOROTHY: well that’s a lot of help. where’s my GPS? guess i must have left it back in texas. hey, chewbacca, could you stop crying for just one second and tell me where the right road is?
TOTO: (barking at CL)
DOROTHY: great. thanks a lot. i should have known better than to invite you to come along on this trip.
oh look…i see a big sign over there. it says, “D.C. this way–beware of flying monkeys”. that’s weird. i’ve always liked monkeys. how scary could they be anyway? let’s go, lion.
(both following the yellow brick road)
they soon come upon a man made of tin who has rusted away for lack of attention. the oil can conveniently located right next to the man restores his ability to move and to speak normally, or at least coherently.
TIN GUY: thank you so much. i was afraid everyone had forgotten about me. i wish i could be grateful enough to support your case to the wizard, but quite frankly, it’s a rather weak case. i would be surprised if he saw you at all.
DOROTHY: so i guess i should ask you NOT to come with us. i don’t need another axe in my back (figuratively speaking of course).
TIN GUY: don’t get me wrong. i’m still coming with you. it’s tough being ignored. opposing you would make me popular with the flying monkeys. and i’m all about primate approval. hey, wasn’t there supposed to be a scarecrow with the two of you?
DOROTHY: he got lost back in the cornfield. but i don’t need him. i don’t need this walking hairball either. i can get to the wizard all by myself.
TIN GUY: not if i have anything to say about it. let’s go.
they skip along the yellow brick road for a while, singing really bad songs and generally annoying the heck out of each other. the cowardly lion tries to speak, but by now no one is paying attention to him. the tin man wisely suggests avoiding the poppy field and the place where the trees throw apples.
they finally reach the gates to the green city, where an oddly dressed gatekeeper blocks their path.
GK: state your business here, ruffians.
DOROTHY: we want to see the wizard.
GK: sure you do. what makes you worthy to see the great and powerful wizard of d.c.?
DOROTHY: well, because i’m a girl. i’m one of the best girls around. that’s what the lion says anyway. i do have some experience talking to other wizards, and they could tell you that i wouldn’t be wasting his time.
GK: that’s it? that’s your whole argument?
TIN GUY: well, i do like those red shoes.
before dorothy could answer the gatekeeper, an army of flying monkeys appears and carries her off to the dark, ugly castle, where she will spend the rest of her life in isolation. thanks to the tin guy tipping off the monkeys, dorothy will never get to see the gatekeeper again. so what happened to the cowardly lion? even without any help from the wizard, he finds his courage and ditches toto.
if you want serious analysis of president bush’s current SCOTUS nominee, judge sam alito jr., you’ll just have to wait until tomorrow. right now…i will simply say that i like the pick very much.

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wonkette, the president’s speech, and alcohol –common sense surrenders

wonkette live-blogs the president’s speech today, apparently under the influence of alcohol– and i thought creating a drinking game from MSNBC’s “situation” was amusing. some people will use any excuse to abuse their legal right to drink beer. of course, she could be joking. either way, her analysis of the speech is different than anything you will ever see on the news.

as eliza doolittle said in my fair lady, “words, words, i’m so tired of words”. the president has the ability to come up with a good speech once in a while. from what i’ve heard about it, he came up with one today. he needs to sell himself and his policies better. i’ve said this before. he also needs to realize that maybe he could have done better with his second SCOTUS pick. i hope he will figure this out.

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