JUSTICE KAGAN?

Arshad M Khan

A decision that will affect the lives of many for a very long time, three decades and more possibly, requires careful, extremely careful consideration.  Haste is also the most charitable reading of President Obama’s nomination of Solicitor General Kagan to the Supreme Court.  We, therefore, exclude the fact that they were together on the faculty at the University of Chicago Law School, that Larry Summers his economic advisor appointed her Dean at Harvard Law School when he was President of Harvard, a post from which he himself was forced to resign, that she was part of the Clinton administration with a  host of colleagues now serving in the present executive branch.

It is reminiscent of President Bush’s nomination of Harriet Miers when then Senator Obama rightly raised concerns about her lack of judicial experience.   He noted the absence of a legal trail which would therefore require careful scrutiny of the nominee.  And, as in that case, there are a host of other better qualified candidates, notably Judge Wood whose record of opinions in the public interest coupled with the ability to turn her judicial colleagues around has marked her as outstanding.  President Obama has called Ms. Kagan a consensus builder but her kind of consensus seems to represent surrender.  For example, she agreed with the indefinite detention of Guantanamo prisoners allowing broad Presidential power.  She differed from Bush/Cheney in that they read it in the Constitution and she claimed Congressional authorization.  Both threw habeas corpus out of the window, a position later reversed by the Supreme Court.  It is the kind of hair splitting in support of executive authority by judges that have buttressed many a dictatorship.

Not only is Ms. Kagan without judicial experience but her performance as the government’s advocate before the Supreme Court has been surprisingly disappointing.  In many instances, far from displaying a quick, sharp legal mind, she has limped along supported by sympathetic justices.  Moreover, her experience is limited to academia and consulting with Goldman-Sachs, the treasure trove of ex-Clintonites.  She has never been elected to political office or benefited from the kind of real world experience that an Earl Warren could bring to the court.

If her nomination is successful, the court will comprise six Catholics and three Jews.  For the first time in our history the majority population of our country will not have a representative.  As a minority subgroup also without a representative, I can personally sympathize with them.  But that is a small matter.  If it is fair that minorities be represented – as with the last nominee, and I heartily agreed with that choice – then surely the majority needs representation. The void turns democracy on its head and is yet another sign, added to the many that have emanated from Congress, that our democracy is beginning to display telltale hairline cracks in its foundation.

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