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Kagan the calculating?

Another point I’ve been meaning to make about Elena Kagan and the notion that she has carefully plotted her course to the Supreme Court, taking extreme care to shield her true beliefs from public view: How, exactly, can one fit Kagan’s writings about the confirmation process into this narrative of strategic caution?

Kagan wants (supposedly) to preserve her confirmability above all else. So she chooses to write a book review about the confirmation process? She chooses to urge a let-it-all-hang-out model for the confirmation process that she would surely resist -- or at least be advised by administration handlers to resist -- when in the hot seat herself? She chooses to characterize the confirmation process as a “vapid and hollow charade,” with “an air of vacuity and farce,” in which the senators are elected potted plants who allowed themselves to be “stonewalled”?

She’s right, of course, but deriding the process -- and the senators -- that you’re plotting to be in front of does not strike me as the smartest strategy. Her description of the process is delightfully injudicious. So something is a little off in the careful Kagan narrative.

Something is a little off, too, in the White House response to Kagan’s writings. That-was-then-this-is-now is about the best that can be done in this situation. But to suggest, as administration officials have on some occasions, that Kagan hadn’t completely thought through he implications of her position is a discredit to the nominee.

"The passage of time and her perspective as a nominee [have] given her a new appreciation and respect for the difficulty of being a nominee and the need to answer questions carefully," Ron Klain, Vice President Biden’s chief of staff, told reporters. The White House needs to come up with a better defense than one that boils down to: our nominee didn’t understand the process well enough before writing her naive law review article.

Perhaps Kagan is less cagey than her critics think -- and smarter than the White House is giving her credit for in this instance.

UPDATE, 1:32 p.m.: I’m going to eat a bit of virtual crow and retract my criticism of the White House in this post. The full quote from Klain -- I had only see a truncated version -- attributes that position to Kagan herself, at her confirmation hearings for solicitor general: "She was asked about it and said that both the passage of time…," etc. Kagan did a reasonably artful job at the confirmation hearings at trying to wriggle out of the box she had built for herself, and attributing those words to Kagan herself gives them a different meaning.

By Ruth Marcus  | May 21, 2010; 11:46 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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April 1983: Kagan thesis, Oxford (Worcester College) “The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method”

No acknowledgment section, no mention of advisor(s), thesis supervisor, intellectual mentors. Who at Worcester-Oxford 1981-83 was qualified to supervise Kagan's graduate thesis?
Andrew Ashworth… From 1978 to 1988 he was Fellow and Tutor in Law at Worcester College, Oxford, and he served as Acting Director of the University's Centre for Criminological Research from 1982 to 1983.

1982 Mar 8 London TIMES Jail sentences: are politicians the best judges?
Dr Andrew Ashworth, editor of THE CRIMINAL LAW REVIEW, says: ‘The time has surely come to dismantle the barriers between penal policy and sentencing policy: both should equally be the concern of the government.’ He acknowledges the strength of the taboo against such intervention. The taboo insists that the development of sentencing policy be left to the wisdom of the courts under the guidance of the Court of Appeals….Arguing that there is in fact no constitutional barrier to legislative intervention in sentencing, Dr Ashworth says the legislature might enunciate certain general principles (as has already been done in the case of drunken driving) and leave the courts to apply them in the individual cases….The task of formulating aspects of sentencing policy should in the first instance go to a committee or commission. Sentencing policy ought to be a matter for Parliament.”

1982 Nov 10: TIMES Criminal justice: “Dr Andrew Ashworth, a leading criminologist, last month proposed a sentencing council under Lord Chief Justice, to issue guidelines and prescribe maximum sentences for common offences. But such a council, he says, would have little effect unless two difficulties were overcome: ‘mutual distrust between the Home Office and the judges’ and the judiciary’s assumption that sentencing policy ‘is its own preserve’

Posted by: escully1 | May 22, 2010 7:05 PM | Report abuse

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