Monday, May 17, 2010

Enough Whining About Kagan!

Isn't this pathetic? Congress is aflutter over Elena Kagan's lack of paper trail and checklist of cases she would have decided.

Shouldn't they be able to think for themselves...at least this once?

The looming confirmation hearings on this Supreme Court nominee really say much more about our elected officials than this appointed one. You would think they would think.

Even for a cossetted Congressional sort, this is not all that hard. Where you don't have fill-in-the-squares tables of history, you ask about what's important to you and your constituents. You follow up for clarification. You listen to answers to other questions. You mash it all up and conclude yeah or nay.

Instead, from all political angles, in expanding circles of relationship to the appointment, we find much rending of garments and wringing of hands. Lord have mercy, she doesn't have a judicial track record! How can I decide what to think without a list! Help! It's her fault. Damn this tabula rasa! She's unknowable!

Three concepts emerge immediately:
  • She should have and would have been a judge, on the U.S. Court of Appeals in D.C., from 1999 if the Republican head of the Senate Judiciary Committee, Orrin Hatch, had permitted a hearing on her nomination by President Clinton. She was only one of many blocked by recalcitrant GOP sorts, causing huge backlogs from unfilled judicial appointments.
  • Many highly competent SC justices had not previous judicial experiences. Check FindLaw's list of 40, including from the last half of the 20th century Rehnquist, Powell, White, Fortas, Goldberg, as well as famous golden oldies Douglas and Frankfurter.
  • Sometimes hearings involve real judgment — like a justice has to do all the time. Ask questions and make informed opinions. People in the real world do it all time.
Yes, it is pathetic that media types as well as very invested lobbyist and political interest groups squeal for a scorecard with check boxes. They should be absolutely ashamed to admit their inflexibility and unwillingness to analyze.

Let the hearings start. Let the Senators squirm and admit discomfort. I have no reason to doubt that Kagan would be able to do her job. Those involved in the confirmation hearing should do theirs.

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