Yesterday I wrote a guide to the GOP lines of attack on Solicitor General Elena Kagan. So which ones made an appearance?
Kagan hates the military.
This one made an appearance, but it wasn't harped on as much as I would have thought. The harshest words for Kagan on this subject came from Sen. Jeff Sessions, who said, "Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas." I don't suppose it "demeans" service members to have to hide their sexual orientation while sacrificing their lives for their country, does it?
GOP vs. Thurgood/Kagan's an activist.
I was completely wrong about the GOP not going after Thurgood Marshall, the nation's first black Supreme Court justice and an American hero whose whose career was basically a long line of legal victories for racial equality and civil rights. Sen. Jon Kyl complained, "When she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog." Not an unshakable determination to protect the underdog! This is one of those unintentionally revealing moments -- judicial conservatives don't so much avoid empathy so much as they don't feel it for the types of people liberals see as "the underdog." In yesterday's gun decision they certainly made an effort to emphasize the plaintiff's fear of being unarmed in a high-crime neighborhood in Chicago.
The GOP's harping on Marshall, though, is actually part and parcel of their most consistent attack on Kagan -- that she's a liberal. Which is fine! Conservatives are allowed to dislike judges who don't share their views, and Marshall was a very liberal judge. That's why liberals love him! I think there's a general tendency for liberals to beatify people who were part of the civil-rights movement, but it's important to understand that not everyone shares that view, and that doesn't automatically stem from racial animus. Conservatives don't make a distinction between being liberal and being results-oriented or activist, so it makes sense that they would use Marshall to criticize Kagan. At least they aren't defending the three-fifths compromise anymore.
I think what matters most is how Kagan will react to the criticism -- and whether she'll disavow her admiration for Marshall.
Again, some harsh words from Sessions and Kyl, and some mild criticism from Jon Cornyn and Chuck Grassley, but Orrin Hatch, for his part, flatly stated that “I have never considered the lack of judicial experience to be an automatic disqualifier for a judicial nominee." Sen. Scott Brown, who is not on the committee but as senator for Massachusetts helped introduce Kagan, actually praised her for having "an impressive resume."
Kagan as harbinger of Sharia.
Conspicuously absent from Sen. Jeff Sessions' opening statement/bill of grievances with Solicitor General Elena Kagan? Any reference to the Islamic Studies Program at Harvard or the Islamic Finance Project at Harvard Law as evidence that Kagan partnered with sinister foreign forces to implement Sharia at Harvard University. Maybe after he saw Frank Gaffney's op-ed, Sessions realized that the whole idea wasn't just stupid but genuinely nuts.
If today is any indication, the hearings are likely to be as tame as most political prognosticators predicted. Apart from Sessions and a few others, the appetite for a knock-down drag-out fight just isn't there. Sessions cited Kagan's opposition to Sen. Lindsey Graham's attempt to block detainees' access to federal courts. Graham for his part, didn't even mention it, and in an oddly reassuring statement, told Kagan that “the fact that you embrace liberal policies and have grown up in a liberal household is something we need to talk about, but that’s just America. ... It’s OK to be liberal. It’s OK to be conservative.”
When was the last time you heard a Republican say something like that? Graham seemed more comfortable with Kagan being a liberal than many of the Democrats on the committee, who chose to refer to her repeatedly as a "moderate." But maybe that's because Graham doesn't think Kagan is actually that liberal, and that's why he likes her.
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