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Kagan delay hypocrisy

Guest Blogger

Delaying the vote on Elena Kagan’s nomination for the Supreme Court will give Senators extra time to ponder her record, right? Nope, argues Keith J. Bybee, author of the forthcoming “All Judges Are Political — Except When They Are Not: Acceptable Hypocrisies and the Rule of Law.” It’ll just give everyone more time to get themselves tangled up in the inherent contradictions of the process.

By Keith J. Bybee

On Tuesday, the Senate Judiciary Committee announced that its vote on Supreme Court nominee Elena Kagan would be delayed by one week. The delay was widely expected and will almost certainly have no influence on the ultimate vote.

A predictable and apparently inconsequential delay hardly seems worth noting. But in this case it is.

The importance of the delay is not that it will — contrary to all indications — somehow manage to enhance committee deliberations. Even the parties most directly involved in the delay don’t seem to believe that. Senator Jeff Sessions requested the delay and gave no sign that that additional time was necessary to make up his mind. Instead, Sessions said that he thought Kagan’s testimony before the committee had lacked “clarity” and “intellectual honesty,” comments that strongly suggested he had made his decision long ago. In acknowledging the requested delay, committee chairman Senator Patrick Leahy stated that “every single member of this committee,” including Sessions, already “knows how he or she will vote.” Leahy then made clear that his own views were just as firmly set as the anyone else’s.

Instead, the delay will give senators and interest groups further opportunities to praise with one voice a shared ideal of judicial decision making. Everyone will say that they want an impartial arbiter on the Court who will carefully weigh arguments and apply the law to the facts of each case. At the same time, the delay will also give politicians and activists more chances to make impassioned appeals for the confirmation of a nominee who is already committed to specific political views.

The contradictions that will be showcased during the delay are a concentrated example of the tensions that run through the confirmation process and that characterize public discussion of the courts. Whether the debate is over a Supreme Court nominee or a controversial court decision, we routinely pair lofty assertions of principle and impartiality with the aggressive pursuit of partial interests, calling for neutral application of the law at the same time that we demand our side win.

During the extra week that we must now wait before the committee vote, we won’t learn anything that will change Kagan’s chances. But we will get a crash course in how the rule of law now operates.

By Rachel Hartigan Shea  |  July 14, 2010; 11:48 AM ET
Categories:  Guest Blogger  
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