Get Ready for a Summer of Fun

It appears as if the nomination of Elena Kagan to the Supreme Court was a purely strategic move. The common narrative emerging on the logic for this pick is that Kagan isn’t too “liberal” to send the Right into a frenzy, not too “conservative” to further alienate the far Left, and she lacks a long “paper trail” that could be subject to politicization. 

Yet this move may backfire.  The Administration is betting that Republicans will see the nomination for what it is – a moderate replacement for Stevens that, if anything, moves the Court slightly to the Right – and will respond by promptly confirming her and avoiding another partisan fight before mid-term elections.  And while the right-wing National Review suggests that Senate conservatives should probably save any dramatic opposition for a more “liberal” future choice, other responses from the Right imply that her candidacy will be as comedic as Sotomayor’s.  Even the National Review – while dismissing calls for a filibuster (probably not because they don’t want to, but because it doesn’t play well politically) – argues that the confirmation hearings should be used as a venue for Republicans to “make the case for a properly limited, constitutional conception of the judiciary and its powers.”

In all likelihood, what this means is several days of hearings (and weeks of news coverage), where we, once again, see the Left tiptoeing away from any accusations of “judicial activism.”  I can just see it now:

Sen. Coburn/Cornyn/Sessions/Kyl/any old white Republican: [nasally, snarky, annoyed tone] “Where, in the Constitution, do the Founders give homosexuals the right to get married or to serve in the military?”

Kagan: [thoughtful, deliberative, conciliatory tone] “Well, one might interpret the 14th Amendment’s ‘equal protection’ clause in that manner…BUT the current state of the law is [insert red herring] and previous decisions have [insert obtuse legal banter], plus it is the right of the states to [insert nod to Federalist Society]. THEREFORE, [insert ambiguous claim that leaves us without any idea how she would ultimately decide on a case involving gay rights].”  

Rather than backing down in such a manner, Democrats should articulate a clear alternative: we are all “judicial activists.” Or, rather, there is no such thing as a “strict constructionist.”  Conservatives should stop the cowardly practice of cloaking their personal views under the guise of “the founders” or (their personal interpretation of) the Constitution.  Unfortunately, this type of proactive response doesn’t seem likely to come from the current administration.

More on this soon…


~ by iamtomjoad on May 11, 2010.

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