Confirm or Reject?
"..I'm afraid we have a dangerous, progressive, political-type nominee"
Alabama Republican Senator Jeff Sessions, July 28, 2010
I presume that Senator Sessions means to distinguish Elena Kagan from previous nominees such as John Roberts and Samuel Alito, who must have been non-polltical. They certainly were not progressive. But really that is the whole point: judicial nominees tend to share the general political orientation of the President who appoints them, or at least the President thinks so.
Unlike Senator Sessions, I have no problem with a "political-type" nominee, even one whose political ideology is very different from my own. One of the consequences of a presidential election is the philosophy of the federal judges that the new president will appoint. If liberal presidents appoint qualified liberals and conservative presidents appoint qualified conservatives, over time the courts will be filled with qualified people with varying viewpoints; I believe that this is the way our system should work. Since most policy-making decisions are made by appellate courts with three to nine members participating, these decisions will reflect a broad consensus of judicial philosophies.
It has become customary in recent decades for Supreme Court nominees to say as little as possible about their political or judicial views at confirmation hearings, promising only to render fair decisions based upon the law. The truth is that anyone in public life long enough to be nominated to the Supreme Court would have some well-considered opinions about how the Constitution should be understood and applied, and I would prefer that nominees would be more open about them. For example, if a nominee were asked whether Brown vs Board of Education (1) should be affirmed or reversed, I would prefer the nominee to respond without hesitation, "I would vote to affirm Brown!" Recent nominees have refused to comment on cases that may come before the Court.
If Supreme Court nominees should not be rejected for their judicial philosophies, then when should a nominee be rejected? During my lifetime only three nominees were rejected by the Senate (Haynsworth, Carswell and Bork) while three other nominations were withdrawn ( Thornberry, Ginsburg, and Miers). I wish the Senate had also rejected Clarence Thomas, who shamelessly played the "race card" by labeling his confirmation hearings a "high-tech lynching." Thomas, who had been accused in sworn testimony of repeated acts of sexual harassment, was confirmed anyway.
The Bork story is a good example of a justified rejection. Older readers will recall that Bork was US Solicitor General during the Watergate era. When President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Counsel Archibald Cox (despite pledging not to interfere with his work), Richardson resigned rather than carry out the reprehensible order. Nixon then ordered Deputy AG William Ruckelshaus to fire Cox, and he, too, resigned rather than comply. But when Nixon then ordered the Acting AG Robert Bork to fire Cox, Bork fired him. This outrageous act ultimately brought Nixon down.(2) Fourteen years later, Democratic senators remembered this when they voted to reject President Ronald Reagan's nomination of Bork to the Supreme Court.
Of course Elena Kagan is a liberal, as would be anyone that Barack Obama could conceivably nominate. (In his later years retiring Justice John Paul Stevens was also often aligned with the liberals, although I doubt that President Gerald Ford considered him one when he appointed Stevens to the Court in 1975.) Maybe Senator Sessions and most of his fellow Republicans are so intent on beating Obama on something that they would vote to reject any Obama nominee. But Kagan's credentials are solid, and her closet has no skeletons. Four Republican senators are already committed to voting for her, and that is more than she will need for confirmation.
Mazel Tov!
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(1) This decision ruled that segregation of public schools in Topeka, Kansas, was unconstitutional. It was a landmark ruling in breaking down segregation and white supremacy in the South.
(2) The Cox dismissal spurred calls for impeachment hearings by the House Judiciary Committee, which voted to impeach Nixon in early August, 1974. Nixon resigned August 9.
Alabama Republican Senator Jeff Sessions, July 28, 2010
I presume that Senator Sessions means to distinguish Elena Kagan from previous nominees such as John Roberts and Samuel Alito, who must have been non-polltical. They certainly were not progressive. But really that is the whole point: judicial nominees tend to share the general political orientation of the President who appoints them, or at least the President thinks so.
Unlike Senator Sessions, I have no problem with a "political-type" nominee, even one whose political ideology is very different from my own. One of the consequences of a presidential election is the philosophy of the federal judges that the new president will appoint. If liberal presidents appoint qualified liberals and conservative presidents appoint qualified conservatives, over time the courts will be filled with qualified people with varying viewpoints; I believe that this is the way our system should work. Since most policy-making decisions are made by appellate courts with three to nine members participating, these decisions will reflect a broad consensus of judicial philosophies.
It has become customary in recent decades for Supreme Court nominees to say as little as possible about their political or judicial views at confirmation hearings, promising only to render fair decisions based upon the law. The truth is that anyone in public life long enough to be nominated to the Supreme Court would have some well-considered opinions about how the Constitution should be understood and applied, and I would prefer that nominees would be more open about them. For example, if a nominee were asked whether Brown vs Board of Education (1) should be affirmed or reversed, I would prefer the nominee to respond without hesitation, "I would vote to affirm Brown!" Recent nominees have refused to comment on cases that may come before the Court.
If Supreme Court nominees should not be rejected for their judicial philosophies, then when should a nominee be rejected? During my lifetime only three nominees were rejected by the Senate (Haynsworth, Carswell and Bork) while three other nominations were withdrawn ( Thornberry, Ginsburg, and Miers). I wish the Senate had also rejected Clarence Thomas, who shamelessly played the "race card" by labeling his confirmation hearings a "high-tech lynching." Thomas, who had been accused in sworn testimony of repeated acts of sexual harassment, was confirmed anyway.
The Bork story is a good example of a justified rejection. Older readers will recall that Bork was US Solicitor General during the Watergate era. When President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Counsel Archibald Cox (despite pledging not to interfere with his work), Richardson resigned rather than carry out the reprehensible order. Nixon then ordered Deputy AG William Ruckelshaus to fire Cox, and he, too, resigned rather than comply. But when Nixon then ordered the Acting AG Robert Bork to fire Cox, Bork fired him. This outrageous act ultimately brought Nixon down.(2) Fourteen years later, Democratic senators remembered this when they voted to reject President Ronald Reagan's nomination of Bork to the Supreme Court.
Of course Elena Kagan is a liberal, as would be anyone that Barack Obama could conceivably nominate. (In his later years retiring Justice John Paul Stevens was also often aligned with the liberals, although I doubt that President Gerald Ford considered him one when he appointed Stevens to the Court in 1975.) Maybe Senator Sessions and most of his fellow Republicans are so intent on beating Obama on something that they would vote to reject any Obama nominee. But Kagan's credentials are solid, and her closet has no skeletons. Four Republican senators are already committed to voting for her, and that is more than she will need for confirmation.
Mazel Tov!
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(1) This decision ruled that segregation of public schools in Topeka, Kansas, was unconstitutional. It was a landmark ruling in breaking down segregation and white supremacy in the South.
(2) The Cox dismissal spurred calls for impeachment hearings by the House Judiciary Committee, which voted to impeach Nixon in early August, 1974. Nixon resigned August 9.
Labels: Kagan, Sessions, Supreme Court
posted by Gerald S Glazer at 9:42 AM
1 comments
