Legal Commentary

When Dems Believed In The Kagan Standard

By Big Tent Democrat

The Kagan Standard:

[Elena Kagan] called on the Senate [. . .] to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Then Senator Barack Obama stated that the Kagan Standard is even more imperative for a nominee with no judicial record:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

As regular readers know, this is a view I embraced many years ago, and discussed often during the 2005 John Roberts confirmation process, and later the Alito and Sotomayor confirmation processes. In a Bloggingheads session with Glenn Greenwald, Larry Lessig makes the utterly vapid argument that Professor Kagan is different from nominee Kagan and Dems should not take the same position they did with Republican nominees. Not only is this baldly unprincipled and hypocritical, it is also stupid. I'll explain why I think so on the flip.

First, if Lessig believes the Kagan Standard is the right approach for the Senate to take, then he should be for it no matter who is the nominee. It simply weakens the argument for the Kagan Standard when "advocates" for it say I want to apply it to your folks but not to mine.

Second, what is Lessig afraid of regarding Kagan's answers under a Kagan Standard? Will she say things he thinks conservatives won't like or that progressives won't like? In any event, everyone has the right to know what a nominee to the Supreme Court thinks about the issues relevant to the Court.

Finally, one argument against progressive critiques of Obama and Dems is that:

We've got a lot of work to do to get our message across. We're not going to get there by regularly joining right-wingers in Obama pile-ons.

Here's a chance to "get our message across" and persuade the country. That requires a nominee who will express her views, defend her views and persuade that her views are the correct ones.

Hiding and cowering about our views is not how to persuade the country.

Speaking for me only

Full post as published by TalkLeft on May 14, 2010 (boomark / email).