Ralph Nader: ‘Getting to Know Elena Kagan’

By Ralph Nader
Nader.org

Given the Niagara of commentary on the nomination of Elena Kagan to become an Associate Justice of the Supreme Court of the United States, we know very little about the nominee. For friend and critic alike, the predominant view of Ms. Kagan is that she has publically uttered or written remarkably little of her own views on any subject that directly or remotely relates to her forthcoming position.
As a law school graduate, brief stint as a practitioner, special assistant on domestic policy to President Clinton, professor of Law and Dean of Harvard Law School, Elena Kagan has been unusually circumspect, despite her lively tenure as editor of the Daily Princetonian while an undergraduate in Tigertown.

Here is how a colleague of equal rank in the Clinton White House describes many group meetings there on important matters: “She never said much, was very pleasant, smiled a lot, the type of person who rises by not giving offense. She almost never engaged in give or take at the often spirited meetings. Her opinions weren’t known. But she is what she is which is exactly what President Obama wants.”

The problem for Ms. Kagan is that there was one occasion where she was wonderfully outspoken – her long review of Professor Stephan L. Carter’s book “The Confirmation Mess” in the University of Chicago Law Review during the Spring of 1995. Taking Professor Carter sharply to task she comes out as a full-throated champion of confirmation hearings that deal with “substantive issues,” adding that the “Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”

Continuing, Ms. Kagan asserts that “[O]pen exploration of the nominee’s substantive views, … enables senators and their constituents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee…).”

Those are strong words in today’s flabby pretense of Senate confirmation hearings of judicial nominees – hearings which Ms. Kagan described later in her review as presenting to the public “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

So, should you look forward to a spectacular demonstration of fire and brain power between the Senators and Elena Kagan? Not likely. The word is that now she has backed away from such authenticity and so has her boss, Barack Obama.

No one can attribute her earlier stands to being naive about Capitol Hill. To the contrary, her strong stand for robust, serious confirmation hearings on “legal issues,” draws on her experience as Special Counsel to the Senate Judiciary Committee “in connection with the nomination of Justice Ruth Bader Ginsburg to the Supreme Court.”

So, it looks like the first casualty of her nomination will be the authenticity (one of her favorite words) she craved for such nominees as Justices Kennedy, Souter, Thomas, Ginsburg and Breyer, having been quoted years ago as how to evasively behave in order to finesse any controversies during the hearing process.

So since it takes at least two to make a charade game, it is left to the Senators to fulfill the vision of the earlier Elena Kagan when she sits in that chair facing her inquisitors. Some Senators will use the pretext that deep questions on issues and philosophy would compromise the independence of the judiciary – a view Ms. Kagan explicitly rejected in her book review.

Others, being partisan Democrats, want to get the hearing over at super speed, which means a few pro forma questions. A few will take their constitutional responsibilities or their partisan roles seriously and probe into her qualifications – such as not coming from a judgeship background – or her imputed ideological biases.

In any event, this state of affairs is not the worst of the confirmation process. The deterioration reaches the exclusion of witnesses that reflect just the wide range of questions and judgments that Ms. Kagan championed.

I know this from my own request to testify, for example, on the Roberts nomination regarding an ignored area of his experience. I was turned down by the Democrats on the Judiciary Committee.

During the Stephen Breyer nomination, Dr. Sidney Wolfe and I presented detailed testimony regarding Mr. Breyer’s de-regulatory philosophy and the raw empirical reality of human casualties and tortious products that rebut it. That participation would not likely be repeated today. Instead, there are a few carefully choreographed panels of constitutional law specialists, each given five minutes, and all presented as window dressing after, not before or between, the testimony and questioning of the nominee.

So, short of a cumulative public protest before the hearings begin in July, expect the words of assistant professor of law, Elena Kagan, to be relegated to an everlasting limbo as an expression of youthful exuberance replaced by the political realism of autocratic minds.

2 thoughts on “Ralph Nader: ‘Getting to Know Elena Kagan’

  1. Andrew

    Ernest Hancock vs Wayne Allyn Root NYC May 10th 2010

    Ernest Hancock and his wife Donna travel to NYC to help distribute “Serf City” newspapers on the Subway system to promote the Manhattan Libertarian Party. That evening Ernest Hancock debated Wayne Allyn Root for LNC Chairmanship.

    http://www.freedomsphoenix.com/Article/068927-2010-05-16-ernest-hancock-vs-wayne-allyn-root-nyc-may-10th-2010.htm

    Freedom Activism 101
    http://ernesthancock.org/?p=234

    The following aphorisms are the work of libertarian novelist L. Neil Smith. They have been the bedrock for libertarian activism in Arizona for the last 10 years and are the best explanation I can provide for the tactics of our past/future. Enjoy.

    Never soft-peddle the truth. It’s seldom self-evident and almost never sells itself, because there’s less sales resistance to a glib and comforting lie.

    Understand from the minute the fight begins that you’re going to take damage. Accept it. (You’ll always suffer more from the idiots and cowards on your own side than from any enemy.) Keep your overall goal in mind above all. Those who swerve to avoid a few cuts and bruises defeat themselves.

    If you’re not a little bit uncomfortable with your position, it isn’t radical enough. How can you be too principled? Take the most extreme position you can. You’re claiming territory you won’t have to fight for later, mostly against your “allies.”

    Go straight to the heart of the enemy’s greatest strength. Break that and you break him. You can always mop up the flanks and stragglers later, and they may even surrender, saving you a lot of effort.

    Know, down to the last cell in your body, that the other guy started it. He’s the one who put things in an ethical context where considerations like decency and mercy have no referent. The less pity moves you now, the sooner you can go back to being a nice guy.

    If you lose, go down fighting. It costs nothing extra, and now and again …

    Remain the judge of your own actions. Never surrender that position by default. When the enemy screams “Foul!” the loudest, you know you’re doing him the most damage. Those who help him scream are also the enemy.

    Second thoughts, failures of confidence, nervous last-minute course-changes are all detours and recipes for defeat. The time to think is before the battle – if possible, before the war – not in the heat of it.

    It is moral weakness, rather than villainy, that accounts for most of the evil in the universe – and feeble-hearted allies, far rather than your most powerful enemies, who are likeliest to do you an injury you cannot recover from.

    Know, otherhandwise, that the easiest, most humiliating path to defeat is thinking that to beat the enemy you must be like him. Avoid the temptation to set your values aside “for the duration.” What’s the point of fighting if you give up what you’re fighting for? If remaining consistent with your values leads to defeat, you chose the wrong values to begin with.

    Never aim at anything but total achievement of your goal: the utter capitulation of the enemy. Every effort involves inertia and mechanical losses, so adopting any lesser objective means partial defeat. Total victory means you don’t have to fight the same fight again tomorrow.

    The most dangerous and successful conspiracies take place in public, in plain sight, under the clear, bright light of day – usually with TV cameras focused on them.

    Ever notice how those who believe in animal rights generally don’t believe in human rights?

    The function of government is to provide you with service; the function of the media is to supply the Vaseline.

    “Wake up America ,” you demand? America doesn’t need to “wake up” – by which of course, you mean pay attention to whatever you think is important. If America weren’t already awake, paying attention to what each individual thinks is important, your milk wouldn’t have gotten delivered this morning, and you wouldn’t have any electricity this afternoon.

    You cannot force me to agree with you. You can force me to act as though I agree with you – but then you’ll have to watch your back. All the time.

    You may never convince the other guy, but it’s often worthwhile to keep arguing for the effect it has on bystanders, especially his allies.

  2. Brian Holtz

    What does comment @1 have to do with this article? You do know that the payload of your spam here (and in one other thread) has already been featured in toplevel IPR articles, don’t you?

Leave a Reply

Your email address will not be published. Required fields are marked *