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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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