May 14, 2010

The Nation: "Elena Kagan should be borked."

In the special Kagan meaning of "bork":
In what is by now an oft-quoted snippet from one of her law review articles, Supreme Court nominee Elena Kagan castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a "vapid and hollow charade."...

What is less remarked upon is that in her article Kagan proposed a model for a more vigorous and candid confirmation hearing—that of Judge Robert Bork. The process worked in that instance, she argued, not because of the particular result but because the hearings "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan's description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork's legal opinions and voted accordingly. So it is with this understanding that we propose, in the spirit of democratic deliberation of which she so eloquently wrote, that Elena Kagan should be borked.
But this kind of borking is impossible unless the nominee wants it. It doesn't matter what questions the Senators come up with or how pushy and repetitive they are about asking them, the "vapid and hollow charade" can be kept up by the nominee until the clock runs out. The only reason the Bork hearings proceeded the way they did was because Bork chose to engage in legal debate with the Senators. He obviously believed in his ability to explain his ideas in a superior fashion, but he wasn't quite as smart as he needed to be about how it all looked to the people watching it on television, and he gave his enemies the ammunition they needed to bring him down.

Since Bork, all the nominees have adopted the same self-protective stance that Kagan criticized in her article. What would motivate Kagan to do anything other than that? I have 3 thoughts.

1. Kagan wrote a law review article criticizing the vapid self-protective approach to the hearings. She has a little incentive to avoid hypocrisy. A little.

2. She might really care about the criticism she once penned and want to set a new example of how a nominee can be forthright and expressive without losing, like Bork.

3. Unlike the nominees who adopted the self-protective strategy to deprive the President's opponents of the ammunition to shoot them down, Kagan could be pushed by Democratic Senators. That's what The Nation wants to see. It will be interesting if Democrats try to extract assurances of liberalism from Kagan, but why would Kagan want to give them that. Whatever might work for her with them will work against her with others — and with the American people who are consuming tidbits on TV and on line. I, for one, will review every word of the transcripts looking for interesting things to highlight. It's risky to give out any good material, but I hope she does. I don't think she will.

Bottom line: Expect another vapid and hollow charade.

25 comments:

Kirby Olson said...

Well, let's hope she gets what she deserves: a serious hearing on all matters pertaining to her judgement, before she is benched.

Original Mike said...

"Unlike the nominees who adopted the self-protective strategy to deprive the President's opponents of the ammunition to shoot them down, Kagan could be pushed by Democratic Senators. That's what The Nation wants to see. It will be interesting if Democrats try to extract assurances of liberalism from Kagan, but why would Kagan want to give them that. Whatever might work for her with them will work against her with others"

Once again, The Nation proves itself to be dumber than a post.

Scott said...

Honestly, I think Judiciary should just rubber stamp her. By eliminating the kabuki, it would underline how corrupt the confirmation process has become.

mesquito said...

In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan's description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork's legal opinions and voted accordingly.

-a nasty Communist rag

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

-A festering piece of shit, now deceased

Pastafarian said...

Unless I'm misinformed (a real possibility on issues of legal technicalities), isn't it required by the rules of this process that there be some dancing about the issues, rather than directly confronting them?

For example, the senators can't just ask her how she would vote on something that might come before the court. So they have to cloak their questions in hypotheticals and she has to conceal her answers in vagueries.

Which is bullshit, in my humble opinion.

What is the point of this? Can someone with some legal knowledge explain to me why they have to maintain this charade? That's all it is, after all -- she knows now how she'll rule on each prominent, substantially important case that might come before her. She knows how she would have voted on Kelo; she knows how she'll vote on any second amendment cases that might come up.

Otherwise we wouldn't have the liberal wing and the conservative wing of the court. And she's not a fence-sitter like Kennedy -- if she was, she would never have been nominated by President Obama. She's given him assurances, in private, that she'll vote strict party line (and by party, I mean the Socialist Party) in every case, or she wouldn't be here.

Fred4Pres said...

Kagan will not engage honestly.

Here are two politicans. One melting down. The other ascending with honest debate.

Here is Holder melting down. Yet Horwitz gets this student to admit her true motives.

Hmmm.

Quayle said...

When Obama's groomers and handlers finishing mooting and prep-ing her, she'll appear in the hearing as a cross between Mother Cabrini and Florence Nightingale.

Like Tiny Tim, she'll tip-tow through the legal issues.

Blue@9 said...

Sooo... at which point do the Senators call her a drug addict and extremist, analyze her video rentals, and then make up wholesale lies about how she wants to turn us into Soviet Russia?

Amazing how the left thinks that the Bork nomination hearings went well, whereas everyone else knows that Bork was "Borked."

edutcher said...

Given that this woman believes speech should be redistributed (there's that word again), the last thing she wants is a vigorous hearing. Apparently, the Assistant Democrats are gonna let this broad sail through. If anyone deserved to be dismissed out of hand, she's it.

For those who forgot, the last people who believed in the redistribution of speech were the Viet Cong, their preferred method being disembowelment.

mesquito said...
This comment has been removed by the author.
AllenS said...
This comment has been removed by the author.
Hoosier Daddy said...

Elena Kagan should be borked."

There isn't enough whiskey in Ireland to make me want to....oh...it says borked...

Never mind.

troglopundit said...

She should be borked, and often, and by someone who knows how.

Just wanted to get that in before somebody else did.

David said...

Correction:

Should be bonked.

Lance said...

But this kind of borking is impossible unless the nominee wants it.

Sure it's possible: the Judicial Committee need only make it clear that they'll reject the nominee unless she responds satisfactorily. If she pulls a Souter, she's out.

By the way, it's funny that everyone looks at Bork's hearing as the last big controversial nomination, and completely forgets Thomas'. Maybe that's because Bork was genuinely controversial, whereas the attacks on Thomas were almost purely personal.

Big Mike said...

Oh, you wrote "borked."

I thought it was something else.

Fred4Pres said...

Maybe she wants a good bork?

Flexo said...

Rather than ask a bunch of "what if" hypotheticals about how she might rule on a given issue, which she will refuse to answer, they ought simply to test her legal knowledge.

Give her an oral exam on the holdings of past decisions, compare and contrast, etc., which will very likely show, because of her lack of judicial experience or even experience in the practice of law, that she does not know much of the actual content of the law.

Show her to be the lightweight that she is.

rhhardin said...

What good is sitting alone in your room?
Come hear the music play.
Life vain charade, old chum,
Come to vain charade.

Kirby Olson said...

Her classroom behavior would probably tell us SOMETHING: like if she's favorable on the basis of race, and gender, for instance.

Or if there is any specific group that she won't give good grades for reasons that are irrelevant to the actual quality of their work, or if she will give good grades to certain constituences irregardless of their actual performance.

I looked her up in Ratemyprofessors. but you rarely see a lawyer in that awful rating device. It may be because they threaten to sue?

Jeremy said...

In a speech in West Palm Beach on Friday, Justice Anthony Kennedy said lawmakers should not try to figure out how high court nominee Elena Kagan would rule on specific questions.

He said they should instead look at whether her temperament, commitment and character make her suitable for the job.

lyssalovelyredhead said...

I don't know about a Borking, but I'm really hoping that we can get a very clear, very public discussion on the record discussing what the actual limits are of the commerce clause.

She'll dodge it, particularly with the healthcare bill heading that way, but it's an extremely important issue, and we need to know where not just she, but everyone stands. Either the constitution limits the legislature, or it does not.

- Lyssa

AllenS said...

What's up with all this hypothetical, technicality shit. Why not just point out that she's an air head.

rcocean said...

"The only reason the Bork hearings proceeded the way they did was because Bork chose to engage in legal debate with the Senators. He obviously believed in his ability to explain his ideas in a superior fashion, but he wasn't quite as smart as he needed to be..."

Completely wrong. Bork had a paper trail and was being smeared by scum like Ted Kennedy in TV commercials. Bork had to show up and answer questions. He sliced and diced dumbshits like Spector and Biden. But the liberals always had Dan Rather to pick out the 15 second sound bite that made Bork sound bad to Mr & Mrs. Dumbshit American.

That's why Bork lost, he would have lost anyway - no matter what- because the Democrats wanted to keep Norman Lear and the other wealthy Limousine Liberals happy no matter how much they had to lie.

josil said...

If you have a strong stomach:
http://www.verumserum.com/?p=14638