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Supreme Choice

Updated on November 1, 2018

By: Wayne Brown


The Senate Committee continues in its second day of hearings on the confirmation of Supreme Court nominee, Elena Kagan.  This hearing is a rather routine process by which nominees are confirmed by a majority vote of the Senate. Rejections are quite rare among the nominees who have been submitted over the years by various Presidents. History records only 12 rejections since the inception of our governmental process.  While the process is routine, it is also a highly political one driven by much posturing on the part of the President and those favoring the President’s choice in the Senate.


No doubt, in these times of modern media, these confirmation hearings have become yet another photo opportunity for those holding seats in the Senate as they posture and pose before the cameras televising the hearing.  In this particular case, the Democratic side of the aisle will toss Ms. Kagan a few softballs that she can easily knock out of the park and appear to be a brilliant selection on the part of the President. On the Republican side of the aisle, there is some contention over this nominee not so much from a controversial background side in terms of prior court rulings but more on the lack of any real experience in the justice system.  These concerns are well-founded but the Republicans will play nice and go along with this confirmation in the end.


Ms. Kagan is essentially an educator having primarily a background in teaching law on the university level.  She is currently serving as Solicitor General for President Obama and had some experience serving in the Clinton Administration.  She has no prior courtroom experience at any level in the judicial system.  In yesterday’s hearings, it was pointed out by one senator that she was judicially transparent in that there was a lack of information, prior decisions, and involvement on her part in the judicial process.  The raw meat which is thrown into the arena in this case is her lack of viable experience.


The Supreme Court represents one-third of the make up of that configuration forming the governing body of this nation.  It is one-third of our “Checks and Balances” process in our government system.  Ms. Kagan stands to make up 1/9 of that decision and judgment making within the Supreme Court.  Traditionally, we would not expect to send a person with no courtroom experience as a judge at any level directly to the Supreme Court, but, here we about to confirm this nominee with little or no resistance.


Before I take this discussion any further, let me say here that I have no axe to grind with women on the Supreme Court; in fact, I rather like it in terms of balancing the scales within that body.  At the same time, I have no caution with regard to the rumors that Ms. Kagan could be of the lesbian persuasion in her sexual preferences.  As long as Ms. Kagan can leave her sex life at home and off the court bench, I do not see that it has any real bearing in terms of her ability to deal with judicial issues.  My concern here is just that…her ability to deal with judicial issues; her ability to look at the information; apply the rule of law as defined by the rights set forth in our Constitution and direct that it be enforced accordingly.  The last thing the Supreme Court needs is another judge who takes upon themselves to legislate from the bench. Based on the fact that we have no history on Ms. Kagan or her decision-process with regard to applying the rule of law, I would say that we are taking a walk in the clouds.  Remember, barring any unacceptable behavior on her part, she is appointed to this position for life if she so chooses to serve. Ask anyone in prison, life is a long term.


Bringing things down to a more personal level, let’s suppose that you were a major stockholder in a mid-size corporation with a relative bright future in terms of profitability and growth in market share. You have invested just about everything you have into this company and depend on it to be there for you downstream in terms of return on investment.  The board of directors, of which you are only one, has decided to bring on a new CEO to run the company.  So they send out the recruiters and what comes back? The recruiter shows up with a shiny, new right-out-of-college MBA graduate to whom they are proposing the stockholders turn over the reins of the company and its future.  Now, while this young man (or woman, depending on your side of the story) is intelligent, well-educated, and driven, he really has no practical experience in the business world. His interaction with business theory is just that, “theory”.  Theories do not always work because the model on which they are based does not cover every potential situation.  Experience teaches you that and you learn what to look for when it shows up the next time.  No one can buy that for anyone. It must be leaned.  My point here is to ask you if there is some reluctance on your part to turn the future over to this inexperienced person. I think there would be and that is exactly the point here with Ms. Kagan.


This nominee to the Supreme Court is yet another example of Obama’s lack of leadership and judgment.  If that is not the case, then let’s just say it is an all out attempt on his part to eventually undermine the court and the rule of law in this country.  A President has the responsibility to nominate the “most qualified” individuals to serve on the Supreme Court of this land.  Instead, Obama has nominated a candidate who has no track record. That is the only controversial aspect of the nomination for there is nothing else on file to question about this lady’s ability to serve as a judge on the Supreme Court.  Every President is going to take advantage of the opportunity to stack the deck somewhat in terms of liberal or conservative appointees to the bench.  That is an accepted norm in the political process.  In this case, this President chooses to nominate what we think is probably a liberal with no experience.  There are far too many unknowns in this particular case to be happy with the choice.


Ms. Kagan or in the future, Justice Kagan, will weigh in on some important decisions affecting America in the near future. Immigration conflicts could likely be among the first as the Federal Government and The State of Arizona prepare to duke it out over Arizona’s controversial immigration enforcement.  Ms. Kagan, having been appointed by the sitting President and knowing his rabid dislike of Arizona’s law, will be of little objective use on any decision rendered by the court.  Ms. Kagan’s classroom utopia of the application of law in the American society may not be of benefit when good judgment and rulings which support the Constitution will be in order.  There is no substitute for experience and there will be no place where it is more apparent than on the Supreme Court after Justice Kagan takes her seat on the bench.


Republicans will be between a rock and hard place on this issue with no way to come out with a win for the American people.  In the first place, the Senate should not even be considering such a nominee.  If the Republicans resist the choice, they are painted as “Un-American” or possibly having some axe to grind against women or sexual preference.  They end being the “bad guys” and the same nominee still ends up on the bench. The only thing you can be sure of in this process is that yet again American citizens and the American Judicial System are the real losers in this process.


© Copyright WBrown2010. All Rights Reserved.




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    • Wayne Brown profile imageAUTHOR

      Wayne Brown 

      10 years ago from Texas

      @HSchneider...You are quite welcome to disagree with me at any time sir especially when your points are well-taken and supported. I certainly could be receptive to her taking a seat on the bench if she can find a way to stay within the confines of interpeting and applying the laws as opposed to legislating from the bench or acting as a social reformer. That is what my gut tells me we are getting here especially in light of the fact that Obama appointed her and social reform is at the pinnacle of his agenda. Luckily, there eight others on the bench to keep her in check. I can deal with a social reformer on the bench better than I can in the White House at this point. Thanks for taking the time to read my article and leave some great commentary. Please drop by again at any time. I welcome your comments! WB

    • profile image

      Howard Schneider 

      10 years ago from Parsippany, New Jersey

      At one time judges and lawyers were not the norm in filling a Supreme Court seat. It is true that Kagan has no experience as a judge but she is a judicial scholar and as Solicitor General she has some experience before the Supreme Court. Politicians from both sides have been arguing that we need a nominee with more "real life" experience. I don't advocate this but here we have a nominee not from the U.S. Appeals courts. I am from a more progressive view on the Constitution so I feel she fits this position well. Those from the other side should be heartened then that she has a lack of experience. From that point of view, Scalia and Roberts will eat her up. Besides, I feel both sides let judicial restraint slide when the issue suits them. I've written in detail about that. Interesting Hub Wayne. I enjoyed the read though I disagree some. Finally I do agree with you on much of this since I had hoped President Obama had picked differently. But that's politics. The less the paper trail the better.

    • Wayne Brown profile imageAUTHOR

      Wayne Brown 

      11 years ago from Texas

      @Bpop...Poppy, apparently they just didn't know anybody and this was the best they could do on short notice. Besides, she won Obama's heart the minute she began expounding on international law. She apparently has expertise in that area and can't wait to incorporate it into the Supreme Court where it has absolutely no place. This is America and the Supreme Court belongs to us not the world! Looks like we're to have to us a "global judge". WB

    • breakfastpop profile image


      11 years ago

      Obama's nominee has no judicial experience on the bench. Surely there is someone out there who was actually a judge and is qualified to sit on the highest court of the land.

    • Wayne Brown profile imageAUTHOR

      Wayne Brown 

      11 years ago from Texas

      I fully agree with you, Tim although I also believe it was very intentional on his part. He wanted no controversy and an easy confirmation. She has already hinted at incorporating "International Law" into the rule of law in our country, in essence a subversion of our Constitution. The court could easily turn into the system of "political hacks" over the next two decades. This, to me, is just another shameful example of Obama woefully lacking a commitment to lead based of the people's agenda. His directions are all his own and those behind him such as George Soros pulling the strings. The next two years may be one of the most damaging times in American history in terms of our liberty and freedoms. Jimmy Carter can only smile as his legacy improves with each passing day. WB

    • profile image


      11 years ago

      The big question is, does she intend to write law or only interpret it. I find it hard to believe this is the best jurist the O-Bomb can find for our highest court.


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