Washington (CNN) -- Solicitor General Elena Kagan was easily confirmed Thursday as the next associate justice of the U.S. Supreme Court, completing the 50-year-old native New Yorker's climb to the peak of the American legal profession.
The 63-37 vote was mostly along party lines. Five GOP senators backed Kagan, and only one Democrat -- Sen. Ben Nelson of Nebraska -- opposed her. Republican leaders offered spirited floor opposition to the nominee, but were unable to muster a prolonged delay or filibuster of the vote.
Kagan is set to begin a lifetime position as the nation's 112th justice. She will be sworn into office Saturday afternoon, taking the traditional constitutional and judicial oaths. The newest justice will then be able to assume her court duties immediately.
I guess Elena Kagan is such a blank slate that Republicans have to find others to attack.... even the dearly departed. They were apparently so desperate this week that they dug up a class paper that Kagan wrote decades ago, before she even entered law school. Of course they failed miserably with that effort.
But what annoyed me most was the way that Republican Senators on the Judiciary Committee used Kagan to attack Thurgood Marshall - a giant and American hero. Listen to the highlights of the hearings from last week, where Marshall is repeatedly brought up, attacked and diminished by Republicans. The effort was led by Senators Lindsey Graham, John Kyl, and Jeff Sessions. Their racism was plain to see and it was clear that they were playing to their base - their white Southern audiences back home. By targeting Marshall, they were attacking civil rights, desegregation, and equal justice...all the things he stood for. In their attacks (in front of at least one Marshall family member) they painted Marshall as a radical...as a judicial "activist". Marshall's opinions as a judge -upholding the idea of fairness, equal rights, etc- were out of the mainstream (although there is no evidence of that whatsoever). What they were really criticizing was Marshall's career before he became a judge. They were basically saying that Brown v. Topeka Board of Education was not decided correctly and was a result of Marshall's work as an attorney & agitator, and a result of an activist Supreme Court which overturned years of segregation. They suggested that since racism, esp. Jim Crow, was the law of the land, and was well established, settled law.... someone like Thurgood Marshall was a radical and activist because he came along and stirred things up by daring to challenge what had been legal precedent prior to May 1954. In other words, these Senators were sending the not-so-subtle message that Plessy v. Ferguson, the 1896 case that upheld segregation in schools, should have been allowed to stand as it was settled law. Racist to the core.
Why has the national corporate media allowed this to go almost unchallenged? I saw the segments on MSNBC...but I have not heard much from any other outlet. Unreal.
Senator Al Franken provided a pretty good rebuttal - see video. Besides Al Franken.... few Senators/House members have spoken out against this blatant racism.
This comes on top of efforts by racist jackasses like Glenn Beck who want to hijack the anniversary of the 1963 March on Washington as a way to mock Dr. Martin Luther King and the Civil Rights struggle. Beck says he wants to "restore honor" and dignity to America..... as opposed to MLK, advancements in Civil Rights, and that nigra being elected President.
On this week's episode, Marvin King and Lenny McAllister cover minorities getting the frisk from NYC cops, Arizona's immigration law and civil rights, the anti-incumbent mood in American politics and Elena Kagan's nomination to the Supreme Court.
Kagan talking about Obama during a 2005 Celebration of Black Alumni at Harvard Law School:
I thought for sure that Obama would choose a safe pick for the Supreme Court - someone non-controversial. But it turns out that he took a risk. Kagan is a nominee who is drawing criticism from both Progressives and Conservatives. Kagan's nomination seems to resemble something closer to cronyism than substance....an opportunity for Obama to do something for someone that he knows or has worked with in the past. Not very different from David Axelrod, Rahm Emanuel, Arne Duncan, Valerie Jarrett, etc. Yes, she may be qualified, but if he were interested in choosing someone who did not necessarily have experience on the bench, then there were certainly stronger candidates that he could have chosen. The list of scholars, constitutional lawyers, and those who have both litigation and academic credentials is quite long. Kagan probably falls somewhere near the middle or the bottom of that list. I'm o.k. with a nominee without Judicial experience.... as long as the person is not a politician. But Kagan is probably the closest thing to a politician that Obama could have nominated, without nominating an actual politician. Remember, much of her experience comes from serving in the executive branch.
Critics have been expressing concern about the lack of a paper trail for Kagan...that we don't have much to go on. But I think there is plenty of information available. I, for one, have seen just about all that I need to see in order to raise doubts about this nominee. I am bothered more by the little that we do know about her, as opposed to what we don't know. What bothers me the most is her position on civil liberties. I am not much of a civil liberties critic, but in this case, (and since they seem to be under attack lately) questions should be raised. Kagan is on record agreeing with Bush era policy regarding indefinite detention and enemy combatants. Of course the Bush rules on enemy combatants were thrown together to avoid providing due process and standard criminal trials to those captured in Afghanistan. That may have been a legitimate concern at the time, because there was no functioning Afghan government, Bush didn't want to use the Geneva Convention rules, and didn't want to set up a system through the UN or ICC. Since then, however, Republicans have tried to apply these provisions to militants still captured in Afghanistan and Iraq, those captured in other parts of the world, and terror suspects captured in the U.S. There is a huge difference between what Donald Rumsfeld was trying to do in 2002-2003 and what Republicans are trying to do now.
Kagan appears to believe that military tribunals (which the Federal courts have already determined were unconstitutional under Bush) are sufficient for providing due process. Worse.... Kagan believes that the "battlefield" in the war on terrorism can be anywhere that we decide it is...and anyone picked up on that battlefield could be subject to some sort of alternative due process legal system. (And I thought that the Obama Administration decided to get rid of the term "War on Terror". It looks like he may be ready to resurrect that too.... all for some sort of political expediency). A Supreme Court nominee who is so shaky about fundamental civil liberties and the Constitution should be examined with caution IMO.
Here is her testimony touching on these issues, taken from her 2009 confirmation for Solicitor General:
Her connections to former Bush attorney Jack Goldsmith should also raise some eyebrows. And it may be hard to package Elena Kagan as someone who understands the lives of ordinary Americans when she has worked for the likes of Goldman Sachs in the recent past, although only in an advisory role. She doesn't strike me as a champion of the little guy, and few Supreme Court nominees actually come from the real world and could take on that role anyway. Once Kagan is confirmed, the entire Court will consist of justices with Ivy League University backgrounds.
If Obama was hoping that a lack of a paper trail would make confirmation easier, he may have miscalculated. I don't think Kagan's confirmation will be as easy as the Administration had hoped. But I see no obstacle that would stop her from being confirmed.
With that said.... I am not completely against this nominee.... but I am not for her either. I think that a better choice could have been made. The last time I felt this kind of strong ambivalence about a Supreme Court pick, was when George H. W. Bush nominated Clarence Thomas. I was actually offended by Thomas's pick as a replacement for Thurgood Marshall. But I had the ambivalence too because I felt that if Bush wanted to really pick a highly qualified minority, there were many other more qualified candidates that he could have chosen.
No doubt Supreme Court nominee Elena Kagan’s credentials are impressive. She taught at the prestigious University of Chicago Law School, was a lawyer in the Clinton White House, has private practice experience, served as Dean at Harvard Law School and most recently served as Solicitor General, representing the United States in front of the Supreme Court. Even better is that she’s developed a reputation as a consensus builder everywhere she’s gone.
