COLUMN: Kagan confirmation: Incendiary or dud?

Tuesday, May 25, 2010 | 10:51 a.m. CDT

Starting June 28, we will be treated or subjected (depending on individual preference) to televised Senate Judiciary Committee hearings on the confirmation of current Solicitor General Elena Kagan, nominated by the president to the Supreme Court of the United States.

As is the norm, the initial volleys concern her qualifications for serving on the nation's highest court. Democrats praise her as one qualified by virtue of a number of high-level and elite academic, policy and legal positions, such as being a White House aide to President Clinton, dean of the Harvard Law School and Solicitor General of the U. S. Not unexpectedly, Republicans question her slender record of experience — she has never been a judge — and, of course, her perceived liberal leaning.

The always contentious tug of war over the qualifications for candidates for the Supreme Court has long amused me. Article III of the Constitution states only, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

Other than an admonition to behave while serving, there are no stipulated qualifications for a seat on the Court — not age, nor citizenship, nor experience nor even that the justice be a lawyer. Theoretically, in the worst case scenario, an Elmer Fudd can be seated on the Supreme Court provided he is nominated by a president with a majority in the Senate. That is why the framers required the "advice and consent of the Senate" 60-vote cloture for confirmation. Even a powerful and popular president like FDR was prevented from packing the court.

Lacking judicial experience should be no bar to confirmation — William Rehnquist was one of 10 chief justices along with 30 associate justices who were never judges prior to appointment. Nor will her listing left of center be a factor, as Justice Stevens, whom she is nominated to replace, is the Court's lead liberal in writing opinions. She will not alter the balance of the court.

Although Ms. Kagan's experience in legal writings, litigation and judicial proceedings is admittedly thin, it is not disqualifying — barring an unknown revelation, she will be confirmed. She will be questioned at length about her position on barring recruiters from the Harvard Campus because of "don't ask, don't tell," but there is little chance of a filibuster. Unlike Democrats who filibustered 10 of President Bush's nominees for federal appellate judgships, Republicans remained outspoken in favor of an up or down vote — it would be outright hypocrisy to change horses.

Conceding, as it should be, that the president's nomination will receive an up or down vote in the Senate, there are at least two disappointments in the process. One was exposed by the nominee herself in a 1995 writing that was critical of the Senate for handing Supreme Court nominees a pass because the questions lacked substance, which enabled them to evade tough questions. In her words, "The confirmation process takes on an air of vacuity and farce."

Perhaps she will recall the admonition and, unlike a long line of her predecessors, not only volunteer her innermost judicial thoughts on thorny issues but also appeal for the committee's toughest questions. Don't hold your breath; the easy path to confirmation is to murmur platitudes while offering that revealing any judicial opinion would compromise pending cases. Most of the Senate Judiciary Committee members will be far more interested in their own self-aggrandizing pontification to notice.

Even more dissatisfying is the virtual ritualistic division of the Court into liberal and conservative factions, demonstrated habitually in its 5 to 4 decisions on controversial cases. With President Obama's ideal jurist as empathetic to the problems of the less fortunate "little guy" and his predecessor's nomination of strict constructionists, that chasm shows no sign of narrowing.

Politics notwithstanding, the law of the land must not be viewed in terms of liberal and conservative. The justices of the Supreme and the inferior courts are educated in similar if not identical institutions — hence, must they not also have similar if not identical knowledge of the law? While a case can be made that not every jurist will arrive at the same finding, the very notion that a decision is but a 5 to 4 coin toss proposition is little short of appalling.

If interpretation of the law is that difficult, perhaps we need to take a closer look at the legislators who make those laws or the primarily Ivy League-educated types who occupy the Court.

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at


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Don Milsop May 26, 2010 | 2:32 p.m.

Colonel, unless they find something really important in her papers from her time in the WH Counsel's Office, I think she'll be confirmed to. While we disagreed on Sotomayor, I do agree with you on this one. But I still think Sotomayor should have been disqualified based on her statement about judges making policy from the bench.

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