Dienstag, Mai 11, 2010

It's Always Politics...

Elena Kagan's appointment to the Supreme Court (it must be confirmed by the Senate) underscores just how much emphasis the Obama Administration places on pure politics.

The Supreme Court is one of the three pillars of the American political system, next to the Presidency and Congress. Its primary job is to review disputes about interpretations of laws that have been bumped up from lower courts, generally because there is a dispute about the constitutionality of laws.

As such, a Supreme Court Justice, appointed for life to ensure impartiality (no need to run for re-election or to continue to curry favor with any administration), must be not only someone who knows the constitution intimately, but also someone with a proven track record that shows their ability to make, bluntly, wise decisions about what is lawful and what is not.

Consider, however, this:

Together with Justice Sonia Sotomayor, Elena Kagan's confirmation would represent a shift toward a younger, changing court, one that values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.

The key point here is that she is not being appointed because of her superior knowledge and interpretation of the Constitution, nor for her proven track record in judging difficult cases, nor for her extensive academic work. Having these qualifications is important: when discussing a case in conference, there are no law clerks present who can explain how the law works (see here):

Immediately following oral arguments in a case, the Justices retreat in conference to discuss the points of law at issue in the case. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate.

In other words, the Justices have to know the law pretty damn well: without the qualifications needed, she can't participate properly.

The real reason to oppose her confirmation is because she could move the court away from interpreting the law towards making decisions based on non-judicial considerations.

In other words, politics.

She's a Chicago crony: she's part of the system, that lovely, deeply corrupt (while denying that there is annnnny connection whatsoever) web of personal favors, loyalties unto death (as the recent spate of "suicides" in Chicago have shown) and fabulous rewards.


Kagan describes herself as an "excellent" teacher and a consensus-builder among the fractious faculty of Harvard Law School, where she won praise from conservatives and liberals.

Note: she's not describing herself as an excellent constitutional lawyer, nor as a proponent of a clear ideological stance, but rather she is a "consensus builder". That's fine in politics, but not as a Supreme Court Justice: her job, apparently, would be to cajole the other justices into a consensus, rather than to lay out the law. This is the clear interjection of politics into the Supreme Court.

Perhaps more important to White House officials is her background as a policymaker in the Clinton White House. Obama described her as "a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government."

What does that mean? She's first and foremost a policymaker, someone who in this case who is being appointed to the job not because of her qualifications, but because of what she can achieve for the Obama Administration by being on the Supreme Court.

Said William Galston, who preceded Kagan as a domestic policy assistant to Clinton: "What she would do is a bring a multifaceted understanding of the executive branch." He added: "She knows exactly how it functions and how it reacts to the other two branches. I do think that's a very useful experience for a member of the court to have."

The problem here is that she's not being appointed a policy adviser: she's being appointed to the Supreme Court to interpret the Constitution. If anything, she's a cuckoo's egg, an extension of the executive branch into the judiciary.

One issue for Kagan would be how many cases from which she would need to recuse herself. As solicitor general, she is the lawyer who decides how to handle all of the government's appeals at all judicial levels, not just the Supreme Court. She would have to stay out of cases in which she had played a role in lower courts.

Klain said Kagan would probably recuse herself from about a dozen cases in the upcoming term and five in the following term.

Great: if she is confirmed, she'd be limited in what she does. The Supreme Court considers some 10 000  petitions a year, hearing some 100 cases.

Consider this:

During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.

Do you see where the "consensus builder" fits in?

Her role would be that of influencing what cases are heard and, perhaps more importantly, which are not heard. If she can persuade the other justices that something doesn't need to be dealt with, then the case is automatically denied review.

This is the reason why she is being appointed: not because she is a constitutional scholar, not because she is a judge of impeccable quality and wisdom, and not because she is an outstanding lawyer whose commercial or criminal work is without peer.

She is being appointed because she can help suborn the independence of the Supreme Court. She is a policy maker: this is the interjection of the policy of a single administration, the Obama Administration, of someone from the executive branch, into the judiciary, suborning the principle of the separation of powers.

This Administration is increasingly looking like the most imperial administration since the days of Nixon. It's all about executive power.

Which, given the nature of the Chicago system, is unsurprising: it's all about who sent you and what you owe to the man behind the scenes. For them it's always politics.

For the rest of us, it's only more of the same liberal elitism that has utterly failed to perform, utterly failed to understand and utterly failed to do anything but be corrupted and self-serving.

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