Next attack on Kagan: Partisan rubber stamp!
If at first you don't succeed...
Mitch MConnell, speaking to reporters today, rolled out the next attack line on Elena Kagan: Because she served in Obama's administration, she can't possibly be an independent jurist...
"As Solicitor General, Ms. Kagan is a member of the President's Administration. The President on Monday also said that they're 'friends.' And the Vice President's Chief of Staff -- who helped oversee her nomination -- is evidently hard at work convincing members of the President's party that they will have nothing to worry about in terms of Ms. Kagan's possible appointment," McConnell noted.
That's not necessarily a positive, he argued.
"In our constitutional order, justices are not on anyone's team. They have a very different role to play. As a Supreme Court justice, Ms. Kagan's job description would change dramatically," McConnell said. "Far from being a member of the President's team, she'd suddenly be serving as a check on it. This is why the Founders were insistent that judges be independent arbiters, not advocates."
If Repubilcans start echoing this, we should recall that Clarence Thomas served on the Equal Employment Opportunity Commission under Reagan and Bush the Elder before Bush nominated him to the Supreme Court in 1990. What's more, William Rehnquist served in Nixon's Justice Department before Nixon nominated him to the court in 1971.
By the way, it's perfectly fair game to raise questions about whether Kagan would be a sufficient check on Obama's agenda -- particularly whether she'd likely agree with the administration's views of the proper limits on executive power. But her actual views on such questions are what count, not who she worked for.
Given the resumes of Thomas and Rehnquist it's hard to see this one catching fire.
UPDATE, 5:22 p.m.: The DNC emails pushback:
"Six of the twelve Supreme Court justices nominated by Republican presidents since Nixon worked in the executive branch before joining the court. Elena Kagan will serve on the Court with the same independence and integrity. The sincerity of Mitch McConnell's concern would be much more convincing if he had expressed the same concern in the past, including John Roberts' work in multiple Republican administrations. But he didn't. Neither did any other Republican. Just as they didn't have any problems with Bush nominees who hadn't served in the federal judiciary in the past. Whether it's this issue or that of judicial experience, Republican hypocrisy is undermining their credibility at every turn and prejudicing actually relevant and probative lines of scrutiny."
May 12, 2010; 5:07 PM ET
Categories: Senate Republicans , Supreme Court
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