Democracy Has Prevailed.

May 11, 2010

The Tribune-Reviews Response To Elena Kagan

From today's Trib Editorial Page:
The problems with Ms. Kagan, nominated by President Barack Obama on Monday to succeed the retiring John Paul Stevens, are, first, her limited real-world legal experience and, second, the fact that she doesn't even meet her own "threshold" test for being considered for the court.

Writing at National Review Online, legal scholar Ed Whelan notes that Kagan has been "a legal academic" for most of her career. The one-time Harvard Law School dean never had argued a case before becoming solicitor general last year. And Kagan really only practiced law for about two years, Mr. Whelan says.
Ok, then. Let's get the simple stuff out of the way before we move onto the subtle.

Who's Ed Whelan?

From the NRO website, we learn:
M. Edward Whelan III is the President of the Ethics and Public Policy Center. He directs EPPC’s program on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional law and the judicial confirmation process.
He's also got a ton of experience in conservative judicial circles (clerked for Justice Antonin Scalia, worked in Dubya's Office of Legal Council from just before 9/11 to when he joined EPPC and so on.) but it's the EPPC that I want to look at right now.

Guess who, according to the transparency project over at, has gotten more than $3 million from Foundations controlled by Tribune-Review owner Richard Mellon Scaife?

That's right, my friends. The Ethics and Public Policy Center.

$700,000 between 2005 and 2008 alone.

Doncha think that should have garnered a mention in the editorial?

The subtle is, perhaps, too subtle for Scaife's braintrust to handle. But I will try.

The braintrust starts out with this:
It's not that Elena Kagan never has been a judge that gives us cause to pause in considering her nomination to the U.S. Supreme Court. After all, William Rehnquist never sat on the bench before his nomination to the high court and he served with distinction as an associate justice and chief justice.
Remember that. But then moves on in the next paragraph to criticize her for not living up to "her own 'threshold' test".

So what's this "threshold" test? Luckily, Whelan gives us the answer. It's from a Law Review book review that Kagan wrote in 1995 where she's quoted:
It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the “craft” aspects of being a judge.
But from the first paragraph of the editorial, the braintrust has already rejected that criticism (ie Renquist never "sat on the bench" before being nominated and they liked him, they really really liked him!) so what gives? They can't logically criticize Kagan for something they've already excused Rehnquist for.

Ergo the subtle. Happy Tuesday.

1 comment:

EdHeath said...

It's hard not to be partisan on this kind of issue. If it were a Bush nominee with similar qualifications (maybe former dean of Liberty University's law school) would I be saying the person should have experience on the bench? Still, given today's political climate, it is also hard not to think that conservatives are not just reflexively opposing any Obama nominee.

I gather Kagan is a relatively pragmatic person, who works hard to build consensus for her ideas. As such, she is not the firebrand liberal that more far left Democrats would have wanted. However, that may mean that she may propose rulings that she can sell, perhaps with some modification, to the more conservative members of the court. I suspect some conservatives in politics fear this, that she may be an effective replacement for John Paul Stevens (fun fact: Stevens was a Ford appointee). Hence their opposition.