Monday, May 17, 2010

Kagan And Thomas

The parallel is striking. Or if not striking, ironic. Or at least fodder for a blog post.

Most comparisons of the nomination of Elena Kagan to be an Associate Justice of the Supreme Court have involved the similarity to the nomination of the (less accomplished) Harriet Miers to the same position by President George W. Bush. Neither Kagan now, nor Miers then, would be described as excessively experienced. Neither served as a judge and while Miers' chief qualification was her service as White House counsel, Kagan has served as Solicitor General. And both are women, though some right wing outlets are implying otherwise about Ms. Kagan.

But the analogy to another of nominee of President George Herbert Walker Bush, Clarence Thomas, is more interesting (to me, anyway). On Sunday's This Week on ABC, Glenn Greenwald argued (video below)

the really troublesome aspect is that this is really a nominee about whom shockingly little is known. I mean, we know less about Elena Kagan's beliefs and views than any successful Supreme Court in recent -- Supreme Court nominee in recent memory. And the reason is that she's advanced her career ambitions by essentially avoiding taking any positions on most of the great political and legal questions of the day. As the New York Times said, she spent decades hiding her beliefs and her philosophy from public view.

During his confirmation hearing, on September 11, 1991 (there was a September 11 before there was a SEPTEMBER 11), Patrick Leahy (D-Vt) tried to pin down Thomas on Roe v. Wade:

SENATOR LEAHY: You were in law school at the time Roe v. Wade was decided. Was it discussed while you were there?

THOMAS: The case that I remember being discussed most during law school was Griswold. But I did not spend a lot of time debating all the current cases.

LEAHY: I am sure you are not suggesting that there wasn’t any discussion at any time of Roe v. Wade?

THOMAS: Senator, I cannot remember personally engaging in those discussions.

LEAHY: Have you ever had discussion of Roe v. Wade in the 17 years it has been there?

THOMAS: Only in the most general sense that other individuals express concerns, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator.

LEAHY: Have you ever stated whether you felt that it was properly decided or not?

THOMAS: I don’t recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate.

Deny, deny, deny.

Criticism then centered on the likelihood that Thomas was lying, that it was virtually inconceivable he could have gone through law school at that time without ever expressing an opinion about Roe, the seminal court decision pertaining to abortion. Thomas probably was lying; Kagan, though, has been able to dodge and weave and avoid revealing her ideological leanings.

The concern among individuals such as civil libertarian Greenwald about Elena Kagan's apparent success in keeping hidden her views has evoked the suggestion that she lacks experience or gravitas, or may be far more conservative than one can expect from a nominee of a Democratic president. Of course, most of the criticism from conservatives has been directed toward what they allege is an extreme liberalism (military recruiting on campus and corporate "speech"). This brings to mind the GOP's attack on presidential nominee Barack Obama, whom it unsuccessfully tried to portray as a radical. (And still try, largely unsuccessfully, to portray as a radical.)

Obviously, this has been the way it's played in Washington by those aspiring to the Supreme Court since the nomination of Robert Bork, qualified but conservative in extremis, was rejected. And it will continue to be played that way, with Kagan gaining approval unless something hitherto unknown and shocking becomes known. Greenwald is right, though, when he maintains

And I think that before you put somebody on the court and vest them with the extraordinary power that she would have if she's confirmed, the American people, regardless of where you fall on the political spectrum, ought to demand that she divulge what her beliefs and opinions about these great constitutional and legal questions are.

It won't happen, of course. Asked during his hearing by then-Senator Howard Metzenbaum of Ohio about the concept "that a woman has a right to choose to terminate her pregnancy," Thomas disingenuously (if understandably) responded "Senator, I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue." Elena Kagan will respond similarly to a similar question, continuing what has become a regrettable tradition with those who would sit on the highest court in the land.

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