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Opening Arguments

Tabula rasa justice

Are those of us on the right lucky? We don't even have to decide how to oppose Eleana Kagan for the Supreme Court -- we have a Washington Post expert telling us what we're going to do:

Because Kagan has not served as a judge on the lower courts -- she was nominated by President Clinton but never received a floor vote for a seat on the U.S. Court of Appeals for the D.C. Circuit -- she has little in the way of a paper trail. While this may be helpful in one respect, some conservatives will use it to argue that she lacks the necessary experience to fill a high court slot.

[. . .]

Ed Whelan, a conservative commentator and former Scalia clerk, has asserted that Kagan's lack of "real world experience," due to her long tenure in academia and in high government posts, perhaps makes her even more insulated from the experiences of most Americans than those who spend years cloistered in the judicial monastery.

Whelan's complaint that Kagan is "insulated from the experiences of most Americans" is just the flip side of President Obama's desire to have a justice  with a "keen understanding of how the law affects the daily lives of the American people" -- and just as wrong. What we need in a justice is someone who understands the law and the Constitution and how they are interrelated. Period.

But Kagan's lack of judicial experience is important for another reason. Because she has no paper trail and has been circumspect in what she says, we have no idea of what she thinks about the major issues of the day. And recent history suggests that "specific cases that might come before the court" (i.e., just about everything) will be off-limits during congressional hearings.

That means we really need to know Kagan's philosophical approach to such issues as textual context and the court's own precedents so we can try to determine where she is on the original intent-living document scale.  But expecting the senators to delve deeply into those areas is probably like expecting to see "Hamlet" break out during a WWF match. Oh, well, let's prepare ourselves for hearings, shall we?


Bob G.
Mon, 05/10/2010 - 10:11am

LMAO...fantastic choice of video for the post.
(and just as pertinent TODAY as it was ALL those years ago)