Kagan

Glenn Greenwald does not care for Elena Kagan's intellectual dishonesty. In 1995, Kagan got grouchy about the confirmation process, basically saying the process was a charade and that nominees should have to reveal their views on important legal issues. Now that she's walked a mile in a nominee's shoes, she's not so sure about that anymore and will be keeping her comments as vague as possible. Basically.

Having no clue about jurisprudence or government, I turned to a knowledgeable person. Said person had some smart-sounding ideas, but damn near had a panic attack when I asked for a guest contribution to my blog. To keep this person's identity secret from the two people who read this blog, I will refer to them as The Contributor. Further--and this is painful for me--I'll use the grammatically incorrect "they/their/them" to avoid gender pronouns. Contributor -- do you see what you've done?

The Contributor's first response to the Greenwald article was disappointment. "I would expect [more] coming out of the Obama team braintrust." The Contributor felt first of all, that the backtrack itself could have been finessed and presented more elegantly. Second, The Contributor bemoaned the trampling of a nuanced idea.

A critique of the nomination process is more complex that a simple, "Nominees should talk straight." Rather, the entire process is a "vapid and hollow exercise" due not only to the nominee's refusal to say anything of substance, but also to the necessity for such sidestepping and vagueness. The use of buzzwords and litmus tests has created an environment in which a nominee can't answer questions directly and have a hope of being confirmed.

Given this reality, The Contributor isn't upset that Kagan is going to follow her predecessors' path. Rather, The Contributor wishes that Kagan could have held on to the core of her idea, rather than retracting it completely and "pretending that she's thought about it more." My next question was, "Well, what should the process look like, if not this?"

The Contributor is not sure what the best, theoretical solution is--we didn't even get into the practical aspects--but here were some thoughts that came up. First, being a justice is not about one's personal beliefs, so there is merit in avoiding questions that probe into these areas. Second, The Contributor maintains that it is a dangerous game to give hypothetical case details and demand an answer. Court cases are more complex than can be summarized in a few sentences.

At this point, I suggested a comps-like exercise whereby the nominee is given a full case record, complete with transcripts, and whatever else constitutes a complete record. (Like I said -- I don't anything about this stuff.) The nominee would then be given an opportunity to note what questions he or she would have asked in the course of the case and would be asked to write an opinion.

The Contributor thought a comps exercise could be a fun idea. (The Contributor is a big ole nerd.) But a problem with this approach was noted. Namely, the grading is left up to the (mostly partisan) senators, to whom The Contributor may or may not have referred as "yahoos." (My main contribution to the debate was to point out that at least the House isn't involved in confirmations. We could have Michele Bachmann asking questions.)

This discussion led to The Contributor's final point. The process as it stands is, at its heart, a power grab by the Senate. The Senate is meant to be a check on the President's power, but has become about the Senate making the decision itself. It has gone from, "This is a perfectly reasonable candidate," to "This person is not perfect, because she disagrees with me on [insert hot button issue here.]"

Ginsburg a Eugenicist?

Here is a great interview with Justice Ginsburg by Emily Bazelon for the New York Times Magazine. The entire interview is quite fascinating, as Ginsburg discuss her view of women on the court, as well as touching on her views of affirmative actions and equal rights for women. The quote that is getting attention on the blogosphere is:

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Q: When you say that reproductive rights need to be straightened out, what do you mean?

JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

Some are claiming that Ginsburg is making a eugenic argument. Specifically, that she believed the purpose of Roe v Wade was to rid of us the population growth "in populations that we don’t want to have too many of." It is not at all clear here what she means, but I suspect it was much clearer live, when her inflection could be heard. There are two possible readings of the quotation. The first is that Ginsburg herself believed and supported the eugenic argument. That is, that abortions for poor people are good, because then we have fewer "undesirables." That other reading is that Ginsburg thought the court was making a eugenic argument--not one that she agreed with--but realized later that she was mistaken about that.

Sotomayor and the race card

The headlines say that Sotomayor is a "reverse racist" or whatever.

Thankfully, somebody actually bothered to look at her record. He concludes that she rejects discrimination-related claims by a margin of at least 8-to-1. Here is an example of one of her dissenting opinions, where she supported a claim of discrimination:

"In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials."

So, you know, it's a little hard to argue that she's all preoccupied with race because she's Hispanic.

That's very big of you, Senator Sessions

Jeff Sessions is "not inclined to think it's an automatic disqualification," referring to the appointment of an openly gay justice on the Supreme Court. Senator Sessions was rejected by Congress as a federal judge in 1986.