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The Senate Judiciary Committee vs. Elena Kagan


http://worldonline.media.clients.ellingtoncms.com/img/blogs/entry_img/2010/Jul/01/Senatepanelkaganhearingjune2010.jpg In less tumultuous times, I might be more concerned about Elena Kagan's nomination. Having clerked for Justice Thurgood Marshall, that with her wit, warmth, and engaging personality she could not find minority candidates to qualify for and accept available positions at Harvard Law during her tenure as Dean is glaring and difficult to ignore. (Even CNN has the affable and well reasoned conservative, Ron Christie.)Unfortunately, Republicans, while opposing discrimination are indifferent to affirmative action, and Democrats gave wide berth (a benign neglect) to Dean Kagan's ineffectiveness in broadening her faculty's diversity.

Instead, Sen. Sessions beat a dead horse during the hearings, with much thanks from both sides. He micro-debated the non-issue of job recruiting by the US military at Harvard, disputing whether it was fair that the military recruiters were subjected to Harvard's version of "don't act to challenge Congressional authorization that denies people with an intra-gender sexual orientation the right to be open members of our armed forces; instead move recruiters to another building, hold our noses and open our doors."

The simple shift of locations dramatically concealed Harvard Law's accommodation with the policy of "don't ask, don't tell."

Sen. Sessions missed the opportunity to inquire why, if Dean Kagan inherited this position, she did not lead a review to bring a legal challenge to a stature she felt discriminated; he should have asked in fact, is she tough enough to confront issues head-on that seem to violate original intent and non-discrimination statures, even if the battle and its results would be wildly unpopular.

The committee did an excellent job of talking past Ms. Kagan much of the time, to share for the public its own views on Supreme Court decisions, judicial philosophy, and dramatically debating in remarks its points of differences.


I felt most of the time, Ms. Kagan was a moderator, offering background and context for the discussion, showing charm and intelligence, as she guided the opposing fractions of Senators through their oral arguments which were often removed from a review of her qualifications as a nominee for a lifetime appointment.

The background noise of states rights, talk of nullification, secession, state legislative changes to federal authority, the delegitimization of political authority seemed to push the Senators to safe but impassioned discussions of pet topics.

Actually, delving into the current ambiance of the vox populi and its reading of constitutional law along with the willingness of many States to challenge the Supremacy clause in Article VI would have made a fascinating, free-wheeling discussion of law, its relationship to governing, its role in society, the use and limits of executive power (eg. the Barton apology for BP's voluntary establishing an escrow account; BP's swiftest and most transparent action to date.) South Carolina's Sen. Graham came closest to engaging Ms. Kagan in this type of discussion during his questions. Other senators stuck to a narrow review of memos and briefs or jousted on social issues. Every one praised the progress of women.

Ms. Kagan was certainly a breath of fresh air. But the Senate committee missed a real opportunity to give Ms. Kagan a true chance to shine.

Thanks for reading! /wr. Stir the Perlo, leave a comment. July 9 is Walter Rhett's birthday; but sure to post a comment on that day's post.

(Photos from the Senate Judiciary Committee hearing on Elena Kagan's nomination to the Supreme Court, by talkradionews. Used by permission under the creative commons license.)

Lyric excerpt from George Gershwin/Vernon Duke's "I Can't Get Started With You," from the 1936 show, "The Zeigfeld Follies," originally sung by Bob Hope.

I've been consulted by Franklin D. Even Di had me to tea But now I'm broken hearted I can't get started with you

You're so supreme, Lyrics I write of you Scheme just for a sight of you Dream both day and night of you, But what good does it do?


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