GOP CONCERNED ABOUT KAGAN’S ‘INDEPENDENCE’…. I appreciate the fact that Republican critics of Elena Kagan’s Supreme Court nomination are trying a variety of tacks. Too often in recent political debates, the GOP will push a talking point, it’ll be debunked, and they’ll just keep repeating it anyway.
This week has been less frustrating. They started with questions about judicial experience, but that faded given that more than a third of the court’s justices had never been a judge. They moved to military recruiters at Harvard, but that fizzled upon closer scrutiny. Yesterday, Senate Minority Leader Mitch McConnell (R-Ky.) tried out a new one.
“As Solicitor General, Ms. Kagan is a member of the President’s Administration. The President on Monday also said that they’re ‘friends.’ And the Vice President’s Chief of Staff — who helped oversee her nomination — is evidently hard at work convincing members of the President’s party that they will have nothing to worry about in terms of Ms. Kagan’s possible appointment,” McConnell noted.
That’s not necessarily a positive, he argued.
“In our constitutional order, justices are not on anyone’s team. They have a very different role to play. As a Supreme Court justice, Ms. Kagan’s job description would change dramatically,” McConnell said. “Far from being a member of the President’s team, she’d suddenly be serving as a check on it. This is why the Founders were insistent that judges be independent arbiters, not advocates.”
That’s not a bad try, but it’s underwhelming. Several recent Supreme Court justices — Roberts, Scalia, Thomas, Alito — worked in the executive branch before joining the court. In 1972, Nixon nominated Rehnquist, and Rehnquist was a Nixon administration attorney at the time. Senate Republicans never characterized any of this as a problem before.
For that matter, five years ago, Bush nominated Harriet Miers. She wasn’t only working in the White House counsel’s office at the time, Miers had also been Bush’s personal attorney for many years. She’d even written Bush awkwardly personal notes, telling him how “cool” she he was.
There’s no evidence of McConnell raising concerns about whether Miers might consider herself part of Bush’s “team.”
In other words, it looks like another talking point for the scrapheap.