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Elena Kagan and the GOP's perilous partisanship

Thirty-one Republican senators voted against her nomination as solicitor general. That could tempt Obama to ignore the minority's views when it comes to picking a Supreme Court justice.

March 26, 2009

In 2006, during hearings on President Bush's nomination of Samuel A. Alito Jr. to the Supreme Court, Sen. Lindsey Graham (R-S.C.) reminded Democrats inclined to oppose Alito that "elections matter." Apparently Graham's wisdom was lost on 31 of his fellow Republicans who voted against President Obama's nomination of Elena Kagan, dean of Harvard Law School, to serve as U.S. solicitor general, the government's chief courtroom advocate. (Graham himself didn't vote.)

That Kagan was confirmed anyway doesn't make the partisan vote against her any less outrageous or hypocritical. The opposition of senators who should know better, such as Arlen Specter (R-Pa.), augurs ominously for bipartisan consideration of any Obama nominee to the Supreme Court. Apparently Senate Republicans are determined to continue the tiresome tit-for-tat between the parties that has bedeviled the confirmation process for judicial nominees at least since the Clinton administration.

Kagan is on the short list of possible Obama appointees to the high court, especially if Ruth Bader Ginsburg, the only female justice, were to retire. That may explain why Republicans opposed her. But despite the tradition of calling the solicitor general the "10th justice" -- because the court pays close attention to the office's views of novel legal questions -- he or she is primarily the advocate for the views of the administration in power. That's why Specter was out of line during Judiciary Committee hearings in barraging Kagan with questions about her views on matters including the death penalty, eminent domain and the use by U.S. courts of foreign law.

The focus in this confirmation process should have been on Kagan's qualifications to be solicitor general, and they are superb. An argument by some Republicans that she is at a disadvantage because she isn't an experienced advocate before the high court is ridiculous. The same was true of past Republican solicitors general Robert H. Bork and Kenneth W. Starr.

Republican senators aren't alone in playing partisan games with the office. In 2001, Democrats overwhelmingly voted against Bush's nomination of Theodore B. Olson. Although there were accusations that Olson had misled the Judiciary Committee, the greater sin in many Democrats' eyes was his role on Bush's legal team during litigation over the disputed 2000 election. Also, like Kagan, Olson was a potential Supreme Court justice.

Senate Republicans may think their partisan pique will be cost-free. But if Obama decides that Republicans are determined to ignore Graham's observation, he might abandon the idea of taking the minority's views into account when he is presented with a vacancy on the high court. With judicial nominations, as with other matters, bipartisanship is a two-way street.

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