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Two cheers for Obama's nomination of Elena Kagan

Two cheers for the president because he has nominated someone other than yet another appellate judge to fill the Supreme Court vacancy. But only two cheers, for this reason: The appellate judiciary at its most senior and distinguished levels reflects the culture of the nation's half-dozen-or-so elite law schools. So does Elena Kagan.

The confirmation process was changed radically, and probably irreversibly, in the late summer of 1987, when Democrats defeated President Reagan's nomination of Robert Bork. It would be nice to turn down the temperature a bit in the coming confirmation debate. One way to do so is to accept two principles. First, the president is owed substantial deference for his choice. Second, substantial does not mean unlimited. The Framers in their wisdom gave the Senate a role to play in advising and consenting to nominees.

In the coming debate it will be tempting but futile to ask Kagan whether she thinks Congress's enumerated power to regulate interstate commerce is elastic enough to justify requiring individuals to buy health insurance. That is, does the power to regulate interstate commerce give Congress the power to punish the inactivity of not making a private purchase from a private health-care provider? If the commerce clause is sufficiently elastic, in what sense do we still have limited government – government limited by the Constitution? Concerning another matter, it will be tempting, perhaps futile, to ask Kagan whether or not Arizona's law regarding illegal immigrants is constitutional.

She will not directly address the specifics of the health-care legislation or the Arizona law. Nevertheless, careful questioning should be able to elicit from her enough evidence of her jurisprudence to enable senators to reasonably surmise whether she believes the Constitution still places any discernible restrictions on Congress.

By George Will  | May 10, 2010; 12:06 PM ET
Categories:  Will  | Tags:  George Will  
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Comments

Not sure Mr. Will had a point here. He certainly didn't make one. But forgive me if I prefer a Harvard Law School grad on the bench over a Regency University grad. Quality does matter!

Posted by: CardFan | May 10, 2010 12:27 PM | Report abuse

"...careful questioning should be able to illicit from her enough evidence..."

"Illicit?" And this guy is supposed to be a good writer?

Posted by: kenfolkman | May 10, 2010 12:31 PM | Report abuse

I reckon "innumerated" in the third paragraph should read "enumerated", and "illicit" in fourth should read "elicit". What's with the consistent preference for "i" over "e", is this some Republican thing, or is it more of a bow tie thing?

Posted by: douglaslbarber | May 10, 2010 12:34 PM | Report abuse

Wow. The erudite George Will confusing illicit and elicit. Possibly a Freudian slip?

"Nevertheless, careful questioning should be able to illicit from her enough evidence of her jurisprudence to enable senators to make reasonable surmises about whether she believes the Constitution still places any discernable restrictions on Congress."

Posted by: jacobson98 | May 10, 2010 12:35 PM | Report abuse

Odds are, the typos are an editing error, and not written by Mr. Will. However, either way, he didn't have much of a point to make.

Posted by: 1toughlady | May 10, 2010 12:42 PM | Report abuse

I sure wish at these confirmation hearings they'd ask real questions and get real answers. They've turned the hearings into an odd sort of media event, where there's posing and long-winded questions and then short, meaningless answers. I suppose that's the smart way to play the game, but it sure isn't in the spirit of the confirmation process.

I think Will is on to something about too many people on the Court coming from too narrow a slice of the educational world. If Harvard or Yale are the only acceptable schools, then let's modify the Constitution to say that. I have a hard time believing that the University of Michigan or the University of Virginia or any other of the countless great law schools can't bring forth even one qualified person.

Posted by: mlincoln1 | May 10, 2010 12:57 PM | Report abuse

Perhaps he was dictating to an intern from some linguistically fascinating province in central Asia were all words begin with "i"?

Posted by: douglaslbarber | May 10, 2010 1:00 PM | Report abuse

If the Senators want to "elicit" a real response from the nominee, perhaps they should ask her how she understands the actual words of certain parts of the Constitution. Just go through some of the Articles and Amendments and get her take on the meaning of them. It would be more difficult for her to give non-answers--I guess. But lawyers know how not to answer questions directly better than any other sector of society except perhaps politicians, many of them lawyers.

Posted by: karmour1 | May 10, 2010 1:07 PM | Report abuse

The era we occupy seems to be one of borking, partisanship, and refusal to be governed. It would be nice to return to advice and consent, gentlemens agreements, and loyal opposition but lets not hold our breath.

Posted by: almorganiv | May 10, 2010 1:10 PM | Report abuse

The point of the column that all you obtuse liberals are missing is the most important question facing the American people today: can the commerce clause be so broadly interpreted as to make obsolete the concept of limited government?

This is a crucial question, one that asks implicitly if the United States will remain a bastion of freedom and liberty, or become just another supposedly enlightened state fostering dependence, stagnation, and a culture of entitlement.

The debate on socialized medicine will define the future of the United States for generations to come.

Posted by: theduke89 | May 10, 2010 1:27 PM | Report abuse

I must admit I do agree that not another apellate judge is a good idea, especially after Roberts and Alito. you don't have to be a liberal to know when someone had no intention of keeping settled law. The comment by the duke on socialized medicine is a no brainer. All this law does is make you free loaders pay for your health care. No more running to the emergency room and raising everyones rates. You sound like a welfare princess. Conservatives complain about trial attorneys but never did a thing to hold the Insurance Industry in check along with health care providers.

Posted by: johnturkal1 | May 10, 2010 1:39 PM | Report abuse

? Mr. Will. Appointing a political nominee to a cabinet post and then appointing them to another isn't new. The elephant in the room is that she has never, ever, ever, been a judge and gets to try it out for the first time in a life-long appointment to our highest court. Wasn't Harriet Myers trashed for this? Oh wait I forgot, we now appoint tax cheats from Wall Street to head treasury and that is okay too.

Posted by: star_key2 | May 10, 2010 1:46 PM | Report abuse

Does anyone here believe Kagan would even remotely consider ruling against the Obama government's interests regarding healthcare, immigration or any other matter? This is a political appointment. The name of the game is to stack the court, not appoint someone who might actually think for themselves or do anything independently from the government.

Posted by: ttj1 | May 10, 2010 2:04 PM | Report abuse

She needed to have served as a judge in trial courts where the issues start off. She needed to have practiced law as a trial lawyer. She needed to be other than a pure academic with 6 cases to point to in her brief career as a Solicitor General.
She is an academic and although she is qualified she hasn't the broad experience in the law from the ground up.

Posted by: LETFREEDOMRING2 | May 10, 2010 2:06 PM | Report abuse

Oh look, who you know still reigns supreme.

I'm sure she is perfectly qualified, but I agree with Mr. Will in that someone outside of Harvard-Yale (she taught at the University of Chicago too) would be nice. Someone outside of the Law would be nice. I am not suggesting Joe the Plumber, I mean a lawyer who also holds an engineering degree or a degree in the life sciences. We already have eight justices well studied in the commerce clause and all the other clauses of the constitution. We need some justices who have practical experience with both silicon and carbon based technology. Just one voice the other eight can trust would be nice because in the next thirty years those will be the decisions that really impact our society.

Posted by: caribis | May 10, 2010 2:08 PM | Report abuse

Personally, I would prefer that the president -- this president, any president in the future -- appoint a poet to the high court.

Fie to elitism everywhere!

Posted by: sthomas1957 | May 10, 2010 2:10 PM | Report abuse

I actually hope the hearings consist of questions and dialogue rather than grandstanding and pontification.

Posted by: Rickster623 | May 10, 2010 2:16 PM | Report abuse

She is a political hack who will join eight other political hacks.

They can juke and jive and spray language all over the place via their clerks, but they will play politics with every case.

Posted by: rusty3 | May 10, 2010 2:19 PM | Report abuse

Ms. Kagan remedies the main deficiency of the Supreme Court from President Obama's point of view -- its current shortage of Justices who are not personal acquaintances of President Obama.

I'm glad Obama went as far as nominating someone whose experience in life was not limited to a short period in the Justice Department followed by years on an appellate court bench. But the United States is a really big country, and the Supreme Court has become increasingly specialized and insular over the last several decades. Ms. Kagan would not change that.

She comes from the same background as all of the current Justices, knows all the same people, went to all the same schools. Obama is clearly comfortable with someone who moves in social and intellectual circles similar to his own, but those circles have limitations to which he is either blind or indifferent. I fear he has that as well in common with Ms. Kagan.

Posted by: jbritt3 | May 10, 2010 2:21 PM | Report abuse

mr. obama's, err i mean will's, teleprompter must have been down.

57 states indeed

Posted by: dummypants | May 10, 2010 2:22 PM | Report abuse

In America today, if you are a young college grad with enormous potential and a desire to go into the Law, you go to an "elitist" law school. This is where the best and brightest are found (as opposed to the mediocre Harriet Miers). It makes no sense to wring our hands over "too many" justices coming from the top Law schools. Where else do you expect to find them? And yeah, I expect that if Justice Kagan disagrees with the Obama administration, she will so rule. This is stacking the court with terrific justices. Three cheers for President Obama and his superb picks!

Posted by: bertram2 | May 10, 2010 2:22 PM | Report abuse

He of Princeton University... he who taught at Harvard... he who served as an editor at the National Review... he who speaks of elitist institutions...

Posted by: whocares666 | May 10, 2010 2:25 PM | Report abuse

Sorry, my favorite writer Will must have been angry with the liberals. He did not have time to correct his piece. I think he meant "elicit" not "illicit".

Posted by: Realist17 | May 10, 2010 2:30 PM | Report abuse

Love the comments. For an "entellectual who takes considerable pains to flaunt an "irudite" persona, confusing "illicit" and "elicit," and "innumerate" and "enumerate" suggests, to extend the definition of "innumerate" here, that he is "marked by an ignorance of mathematics and the scientific approach"... and the English language. :-)

Sorry, George, no free pass for what the editor did.

Posted by: tomasidaquino | May 10, 2010 2:30 PM | Report abuse

I prefer to let the Constitution be interpreted using today's standards, which hopefully Ms Kagan will do.

We need to remember that owning slaves was acceptable in the original Constitution, was was restricting a woman's right to vote.

Posted by: KHMJr | May 10, 2010 2:36 PM | Report abuse

Do you s'pose he meant uncountable?

Posted by: Geezer4 | May 10, 2010 2:40 PM | Report abuse

It's going to take many Democrats' nominees and some real luck for the country to survive Bush's disastrous appointments of Roberts and Alito.

Posted by: dicka1 | May 10, 2010 2:42 PM | Report abuse

Will, I can't believe you constantly use the Bork nomination process as the inverse of Republican obstructionism (but not Harriet Meyers, you hypocrite) on the Democratic side.

Bork is, and always will be, the epitome of sleaze. He's the man who will always remain the ultimate coward for culminating the Saturday night massacre. All of his bosses stood tall and resigned rather than approve Nixon's desperate, pathetic and sickening attempt to fire Archibald Cox and derail the accelerating train moving toward his impeachment but Bobby Bork, whom you lionize, stepped in, said OK to the obviously immoral and self-serving decision to fire Cox.

Those of us alive at the time remember it like it was yesterday and will NEVER forgive Bobby Bork for his cowardice and lack of rectitude. What a Supreme Court justice he would have been (he would have made Thomas look good). Tossing Bobby Bork was not optional...he is a villain and calling his declined nomination unfair is insane. I am sick of your lying through ommission...stop it.

Posted by: joebanks | May 10, 2010 2:45 PM | Report abuse

Thanks, George. You've given me a great example to use when teaching my students why they can't rely on computer spell checkers.

Kagan seems entirely qualified for this position. The right wing ideologues are grasping at straws when they start with the "can't we have someone who's not from Harvard?" whining. I don't recall hearing that refrain when Roberts and Alito were nominated.

Posted by: BwanaDik | May 10, 2010 2:47 PM | Report abuse

"Innumerated powers," Mr. Will?

Tsk, tsk.

Posted by: GrumpyOldMan | May 10, 2010 2:49 PM | Report abuse

Seems like some here just read this guy's column every week just to complain.

Posted by: moebius22 | May 10, 2010 2:55 PM | Report abuse

Of course it's not a good idea to always oppose something just because George Will supports it, but it should raise suspicions at least when he finds occasion to agree with Obama so readily (unless he was being sarcastic?).

I'm no expert, but I read Glenn Greenwald over at Salon and he is very much against her candidacy for what I think are many good reasons. Here are just two:

(i) she has no experience as a judge so she has no track record to examine and use to understand her views of the court (perhaps like Obama had limited experience in the senate so we didn't really know too much about what he thought of many things).

(ii) she greatly supports the administrations' ambitions to expand executive power (ala George Bush), which I personally think is a terrible terrible idea (if warrentless spying on citizens was bad for Bush it is also bad for Obama - power corrupts absolutely!!).

Posted by: babble666 | May 10, 2010 2:59 PM | Report abuse

"KHMjr" says 5/10, 2:36p]

I prefer to let the Constitution be interpreted using today's standards, which hopefully Ms Kagan will do.

We need to remember that owning slaves was acceptable in the original Constitution, was was restricting a woman's right to vote.
==============================


Just curious: How does the original Constitution make restricting the right of women to vote "acceptable"? As to slavery, it was ended because a war was fought, the anti-slavery side won and the Constitution was amended in a manner which reflected that fact -- not because it was "interpreted using today's (post-1865) standards".

Posted by: srb2 | May 10, 2010 3:09 PM | Report abuse

Will would hate whomever Obama selected even if it was somebody Will had supported in the past.

That's how nonsensical the political discourse has become. Obama recycles a health care bill originally put forth by Richard Nixon and Gerald Ford and the GOP craps all over it.

Obama could prove me, and the whole world, right by nominating Bork, if the old coot is still alive. It would be fun just to watch the GOP twist in the wind!

Posted by: BattleOffSamar | May 10, 2010 3:12 PM | Report abuse

Seeing as how the Repubs put two far right wing extremists on the court (Roberts, Alito) during Bush Jr's reign, they can take their phony fake outrage about whomever Obama picks (Kagan) and shove it.

Posted by: DrainYou | May 10, 2010 3:48 PM | Report abuse

Johnturkal1 at 1:39 wrote: "The comment by the duke on socialized medicine is a no brainer. All this law does is make you free loaders pay for your health care. No more running to the emergency room and raising everyones rates. You sound like a welfare princess. Conservatives complain about trial attorneys but never did a thing to hold the Insurance Industry in check along with health care providers."

----------------------------------------

You are presuming to know alot about me in this paragraph, which indicates you are an idiot. My wife and I pay for our own private healthcare. It's the welfare princesses who are lining up for freebies. In other words, you've got it entirely backwards, but that's not uncommon for idiots.

Posted by: theduke89 | May 10, 2010 3:49 PM | Report abuse

"The point of the column that all you obtuse liberals are missing is the most important question facing the American people today: can the commerce clause be so broadly interpreted as to make obsolete the concept of limited government? "

You mean like when Kagan fought to keep the federal government from imposing it's will on Harvard University by forcing them to accept military recruiters and ROTC in violation of the local non-discrimination rules?

You mean limited government like that?

Posted by: Hillman1 | May 10, 2010 3:55 PM | Report abuse

Oh look, who you know still reigns supreme.

I'm sure she is perfectly qualified, but I agree with Mr. Will in that someone outside of Harvard-Yale (she taught at the University of Chicago too) would be nice. Someone outside of the Law would be nice. I am not suggesting Joe the Plumber, I mean a lawyer who also holds an engineering degree or a degree in the life sciences.
Posted by: caribis | May 10, 2010 2:08 PM

==========================================

That would be nice, a justice who has knowledge and experiences outside the law. It also would be what real "diversity" is all about.

Posted by: bbface21 | May 10, 2010 4:03 PM | Report abuse

"Not sure Mr. Will had a point here. He certainly didn't make one. But forgive me if I prefer a Harvard Law School grad on the bench over a Regency University grad. Quality does matter!"
/////////////////////////////////////////////

Quality may be found in many places outside the Ivy League schools. More importantly, quality begins with the individual. The school they attended is incidental to their intellect, common sense, abilities, attitude, inteligence and demeanor. There are plenty of graduates from top notch schools who've screwed the proverbial pooch -- in givernment, business, and jurisprudence.

The less we assume that the name of a specific school confers specific qualities in any person the better we will make decisions.

Posted by: argie | May 10, 2010 4:08 PM | Report abuse

Looks like Will needs a poof reader.

Posted by: chopin224 | May 10, 2010 4:26 PM | Report abuse

There must be something buried in Mr. Will's syntax here, but damned if I can find it.

Supreme Court nominations give all the non-lawyers and pundits a chance to try on consitutional law for a week or so before they exhaust their brains and start barking about whatever sound bite Sean and Rush settle on.

If Mr. Will sought to illuminate instead of obfuscate he might be one of the first to parse Kagan's Solicitor General cases and compare her (favorably or unfavorably) with other great lawyers who have held that position. Individuals, perhaps, like Ted Olson and Ken Starr.

The serious work of representing the administration before the Supreme Court is exacting and demonstrates the ability of an advocate in the major leagues. Unfortunately those cases demand an uncommon intellectual rigor to understand and will not be easy for the prols to ponder.

Kagan will be fine as an Associate Justice and will be sworn in. The dithering and gratuitous brick-bats from the incompetent and uninformed who weigh in on her qualifications will be the truly tedious part of this process.

Posted by: roboturkey | May 10, 2010 4:32 PM | Report abuse

Certainly an academic can fit right in on he high court. If anyone has ever watched an actual jury trial and listened to a Supreme Court hearing you know there aren't many similarities in the judge's role. Trial judge's don't say much other than "Have you reached a verdict" and "Let's move along, counselor." The justices who aren't dozing off engage in chatty intellectual exchanges and sound more way more like law school professors.

Posted by: SoCal | May 10, 2010 4:33 PM | Report abuse

"You mean like when Kagan fought to keep the federal government from imposing it's will on Harvard University by forcing them to accept military recruiters and ROTC in violation of the local non-discrimination rules?"

You're not a lawyer, are you? Harvard is a private institution that sought federal dollars while simultaneously barring ROTC from recruiting on campus. There was a simple solution to Harvard's dilemma: don't take the money. It had nothing to do with federal dogmatism and everything to do with Harvard wanting it both ways.

"You mean limited government like that?"

That's the essence of limited govermnent. Harvard could have said no. The federal government did not have access to Harvard by fiat.

Posted by: squid1 | May 10, 2010 4:35 PM | Report abuse

Posted by: kenfolkman

"...careful questioning should be able to illicit from her enough evidence..."

"Illicit?" And this guy is supposed to be a good writer?
******************************************
Zing! Zap!

Posted by: st50taw | May 10, 2010 4:35 PM | Report abuse

Also, what's with all the liberals showing their true colors (if you will) and railing against having a little diversity on the Court when it comes to a justice's alma mater? Is diversity of viewpoints and backgrounds not a worthy goal, or is it just diversity of skin tone and gender that you seek?

Posted by: squid1 | May 10, 2010 4:38 PM | Report abuse

Bork was not someone I would have liked to see on the SCOTUS because he said that Americans do not have an intrinsic right to privacy. However, with respect to the Nixon saga, he stood up to Nixon and was not the villain in the Archibald firing. In fact. he was the hero. I was an adult at the time and am not getting my info from a 2nd source. I watched everything that was going on at the time because it was perhaps the most interesting time in US history since WWII.

Posted by: chopin224 | May 10, 2010 4:53 PM | Report abuse

Hillman1 wrote:
You mean like when Kagan fought to keep the federal government from imposing it's will on Harvard University by forcing them to accept military recruiters and ROTC in violation of the local non-discrimination rules?
------------------------------
Your comments meet my definition of 'obtuse'.

Posted by: tulsadave | May 10, 2010 4:56 PM | Report abuse

Mr. Will,

It is illogical to presume that if Ms. Kagan's view of the constitutionality of the Arizona immigrant law and the health care law differs from your own that she must believe that the constitution places no "discernible restrictions on Congress." In fact, it's the worst hyperbole ever written!

Posted by: divtune | May 10, 2010 5:15 PM | Report abuse

I gotta give this one to Will. All he's saying is that A) the President deserves wide latitude here and B) the only thing he wants to know is the nominee's views on the restrictions of ability to regulate and legislate things. That ability currently seems to have no boundaries.

Posted by: Dive4Blood | May 10, 2010 5:21 PM | Report abuse

By the time I read it, the words 'enumerate' and 'illicit' had already been corrected in the published copy.

But I must say the word 'illicit' would have been a better choice if you anticipate the purpose of the questions some committee members are likely to pose to the nominee.

After all, she has already been implicated in a failed attempt by top academics of law schools to suggest that the Constitution doesn't really give leaders of the military the right to do any damn thing they want to.
So some members may hope to elicit illicit answers to their questions.

Posted by: loyalsyst | May 10, 2010 5:50 PM | Report abuse

You mean Obama's selection isn't going to bring about Armageddon? I thought that somehow Kagan, just like Sotomayor and Health Care Reform, was so offensive to Jesus that He would come back for sure this time.

Posted by: vfazio | May 10, 2010 5:54 PM | Report abuse

When people start complaining that she has no judicial experience, keep in mind that before John Roberts, William Renquist was the Right's favorite chief justice,,, and he had no judicial experience yet became a great Supreme Court Justice and the Chief,,

so take that, all who claim she is insufficent due to lack of being on the bench,,,,

now bring on the next hypocrit

Posted by: EastCoastnLA | May 10, 2010 6:02 PM | Report abuse

If the US Congress unilaterally determines that it is no longer limited in it's control over the States by the US constitution, then it is time for another Revolution.

A mean, nasty, fight it out, "Don't Tread on me" revolution.

Let's hope the current administration is listening.

Posted by: wilsan | May 10, 2010 6:03 PM | Report abuse

Pres Obama could nominate Jesus to the court and Planet Wingnuttia would still call it a evil Commie-Socialist-Fascist-Nazi plot to pull the plug on Granny and eat 'Merican babies.


Always remember the Golden Rule, people: If the Rethugs hate something, then you know it's something that's good for America.

Posted by: DrainYou | May 10, 2010 6:08 PM | Report abuse

Alabama's Shelby and other vindictive Republicans will, as ALWAYS, do every thing they can to block This Appointment and ANYTHING else that We Who elected Obama want. What's best for the Constitution and the USA is of ABSOLUTELY no concern of the GOP. They only want Control for themselves and Corporate America.

Posted by: lufrank1 | May 10, 2010 6:10 PM | Report abuse

Mr. Will gave us an excellent foundation for listening to the confirmation hearings.

Although, as he stated, she will not address the specifics of the healthcare legislation or the AZ immigration law.

But perhaps she will be asked the questions that will give answers that could help reveal what her positions are on two major issues important to those opposing the hcr's "unconstitutional' mandate and those supporting AZ's "constitutional" new bill.

Don't we know that Obama is only going to select a SCJ that will support his views.

Posted by: pjcafe | May 10, 2010 6:10 PM | Report abuse

She let liars who cheated and copied off scott free.
Obama hopes she will let him off when his lie hits the Supreme Court.

No Thank you....Next.

Posted by: dottydo | May 10, 2010 6:11 PM | Report abuse

The comments here indicate that there must have been a typo on "elicit" on some of your versions of Will's article--

Not on mine -- Only the typical English teacher pleasing writing.

For those of you with a "confused" spell-check, the WaPo proofreader / editor was either confused or having fun with words....It wasn't George's error!

The version I'm seeing is typical erudite George -- no mistakes.

Posted by: pjcafe | May 10, 2010 6:19 PM | Report abuse

I can tell you everything one would need to know to figure out where she stands on just about every issue. If one reads the five page story about her in the NY Times and the Wash Post you can easily figure where she will be on every issue brought before the court..She may not have published much or written much but the few quotes she has had recorded tells you all you need to know...One more "Progressive" added to the court. Ginsberg is up next and we will get another more extreme Progressive. We won't need the Congress to pass laws .. just jam them through the Court.. No politician can get hurt at the polls that way. " I didn't have anything to do with it" What a country !!!

Posted by: james_m_reilly1 | May 10, 2010 6:24 PM | Report abuse

To: the posting by: theduke89 | May 10, 2010 1:27 PM

Thank you for an excellent post -- should clarify for those who missed the point of Will's article.

Posted by: pjcafe | May 10, 2010 6:25 PM | Report abuse

Anyone who is tempted to award George Will points for originality and cleverness for the title of this piece ("Two Cheers for Elena Kagan") should be aware that he shamelessly stole the idea from British novelist E. M. Forster who wrote a book called "Two Cheers for Democracy." No cheers for Mr. Will.

Posted by: michael19 | May 10, 2010 6:32 PM | Report abuse

Personally, I would prefer that the president -- this president, any president in the future -- appoint a poet to the high court.

Fie to elitism everywhere!

Posted by: sthomas1957 | May 10, 2010 6:41 PM | Report abuse

The hearings will be a circus just like Sotomayor's hearing. Personally I doubt any of those bleating idiots on the committee are intelligent enough about the law to even deign to question someone as erudite as Ms Hagan. Let them go after her with their gotcha questions that amount to nothing substantive. I have every faith in my fellow citizens to see right through these fools who have allowed their own personal employment safety, overule any form of common sense. After the past two years of trashing the President of the country they claim to love, I expect nothing good from them. They are self-serving at every possible juncture and really they don't give a damned about America, just holding on to their jobs.

Posted by: papafritz571 | May 10, 2010 6:55 PM | Report abuse

Interesting take on this Mr. Will, thanks. I like how you are pretty straight up about the whole predestination issue. The whole thing of trying too pointedly to game specific cases that the court will face is not very appropriate in many circumstances.

I don't agree with you all the time, but you put effort into your work & it makes it worthwhile to pay attention to if for no other reason than you push me to think harder, and I like that.

Posted by: Nymous | May 10, 2010 6:57 PM | Report abuse

I don't need to ask Ms. Kagan if the Supreme Court is a Trojan horse for government by diktat in which unelected, unaccountable public officials make laws and impose them on the people because I already know the answer to that question.

Just for fun though I would like to ask her if legislation without representation is fundamentally compatible with democracy and, if so, under what legal theory.

Lastly I would like to ask her, if legislation without representation is indeed incompatible with democracy, why citizens of a democracy would have a moral obligation to obey laws made by any unelected, unaccountable public official. What's the theory there? Divine right of the elite?

Posted by: politbureau | May 10, 2010 7:21 PM | Report abuse

Anything other than a flat out "NO!" from an obstructionist conservative like Will is unexpected and welcome. But now, ... does this raises questions about Kagan? If Will is not her automatic enemy, should we become suspicious of her?

Posted by: frodot | May 10, 2010 7:25 PM | Report abuse

Papafritz wrote: "The hearings will be a circus just like Sotomayor's hearing."

----------------------------------

Oh, please. Sotomayor's hearing wasn't a circus. Kagan's hearing won't be either, unless something unexpected and really damning is discovered about her.

Bork's hearing and Thomas's hearings were circuses. Actually, they were worse than that. They were lynchings.

Posted by: theduke89 | May 10, 2010 7:28 PM | Report abuse

Once again a conservative pundit forgets about Robert Bork's role in the famous "Saturday Massacre" during which Richard Nixon worked his way down the Department of Justice until he could find someone (Bork) willing to fire the Watergate Special Prosecutor. Mr. Will knows full well that nominating Robert Bork was a profound slap in the face to anyone who thought that Richard Nixon deserved to be impeached. Maybe this did poison the formerly collegial process of confirm Supreme Court Justices, but it did so only because the Republicans chose use the nominating process in a half-baked attempt to reinvent the Nixon Presidency.

Posted by: seldoc1 | May 10, 2010 7:49 PM | Report abuse

I've attended funerals where the corpse of the deceased was more animated than geo will.

Posted by: JovialReaper | May 10, 2010 7:53 PM | Report abuse

I've attended funerals where the corpse of the deceased was more animated than geo will.

Posted by: JovialReaper


A corpse can "dither" just as well as your affirmative action president!

Posted by: cschotta1 | May 10, 2010 8:16 PM | Report abuse

I wonder if any senator will ask how it was to be on the same faculty (U of C) with the President from 91-95...of course he picked Kagan. He couldn't reach to U of C/Chicago for a pick too quickly (re: Sotomayor). I like both appointees stories. Nevertheless, Obama has done a great job nominating folks who's own rulings were overturned by the Supreme Court (Sotomayor) or ones who can't get their case history and oral arguments correct in the first shot (Kagan). Sotomayor got appointed with more leniency than Obama as senator ever showed Bush's nominees. I hope Kagan gets some tough grilling.

Posted by: vectorandraster | May 10, 2010 8:37 PM | Report abuse

Shouldn't a SCOTUS nominee have experience in judging stuff? Seems to be a pretty basic prerequisite to me.

Posted by: diehardlib | May 10, 2010 10:01 PM | Report abuse

Oh, this is Mr. Will's carrying on again. The same old cause celebre of the Tea Party gang, state righters, and "Obama is always bad," group. So, Congress is suppose to ferret out, ahead of time, if she supports the right-wingers or not. Heaven forbid if she were to want to hear the case, involving the issue(s) in question, before knowing or saying how she would come down on it!

Posted by: magnifco1000 | May 10, 2010 11:25 PM | Report abuse

The sad thing is that while two entrenched parties hover like vultures over the nation's carcass, at a bitter stalemate, many people work twelve hours a day seven days a week and are regarded as pariahs.

Without them, there could be no three trillion dollar Wall Street bailout.

And you won't hear about that from Mr. Will, the fellow known for erudite prose who looks like the emperor with no clothes when he types without an editor.

Posted by: douglaslbarber | May 10, 2010 11:29 PM | Report abuse

Elana Kagan is a bit of a disappointment. Although she has more-than-a-few positives that qualify her for that position, she is hardly the Liberal firebrand I was hoping for to counterbalance the the five extremist twits on that court who are trying to destroy American democracy.

The good news is that she does not have much of a paper trail so there won't be much for the Conservatives to complain about....What am I saying? Of course they'll find something to complain about. They always find something to complain about. They complain a lot. Did you ever notice that?

http://www.tomdegan.blogspot.com

Tom Degan
Goshen

Posted by: tomdeganfrontiernetnet | May 11, 2010 4:19 AM | Report abuse

Wow. The left has made an industry out of arrogant alienation of everyone who isn't them, apparently. Smart strategy, fellas. I'm sure it'll go over swimmingly.

It's not only a strong point. It's the point that will carry the day. Because it's the only one that makes sense for our liberal democratic heritage.

The Founders didn't fight for freedom for no reason, dumbasses. And Montesquieu conceived and Madison added those checks and balances for a reason. Because of people like progressives. And conservatives. And all the rest of the power-mongers among us.

Don't think the world will get more honestly liberal, meaning more liberty?

Watch.

http://benfrankln.blogspot.com/

Posted by: benfrankln | May 11, 2010 8:29 AM | Report abuse

Wow. The left has made an industry out of arrogant alienation of everyone who isn't them, apparently. Smart strategy, fellas. I'm sure it'll go over swimmingly.

It's not only a strong point. It's the point that will carry the day. Because it's the only one that makes sense for our liberal democratic heritage.

The Founders didn't fight for freedom for no reason, dumbasses. And Montesquieu conceived and Madison added those checks and balances for a reason. Because of people like progressives. And conservatives. And all the rest of the power-mongers among us.

Don't think the world will get more honestly liberal, meaning more liberty?

Watch.

http://benfrankln.blogspot.com/

Posted by: benfrankln | May 11, 2010 8:30 AM | Report abuse

Not sure Mr. Will had a point here. He certainly didn't make one. But forgive me if I prefer a Harvard Law School grad on the bench over a Regency University grad. Quality does matter!
Posted by: CardFan | May 10, 2010 12:27 PM

I don't know about Harvard Law School "quality". One cannot become a broad-minded lawyer if conservative viewpoints will not be tolerated and are actively persecuted.

Posted by: adm454 | May 11, 2010 8:32 AM | Report abuse

Not sure Mr. Will had a point here. He certainly didn't make one. But forgive me if I prefer a Harvard Law School grad on the bench over a Regency University grad. Quality does matter!
Posted by: CardFan | May 10, 2010 12:27 PM

I don't know about Harvard Law School "quality". One cannot become a broad-minded lawyer if conservative viewpoints will not be tolerated and are actively persecuted.

Posted by: adm454 | May 11, 2010 8:33 AM | Report abuse

Wow. The left has made an industry out of arrogant alienation of everyone who isn't them, apparently. Smart strategy, fellas. I'm sure it'll go over swimmingly.

It's not only a strong point. It's the point that will carry the day. Because it's the only one that makes sense for our liberal democratic heritage.

The Founders didn't fight for freedom for no reason, dumbasses. And Montesquieu conceived and Madison added those checks and balances for a reason. Because of people like progressives. And conservatives. And all the rest of the power-mongers among us.

Don't think the world will get more honestly liberal, meaning more liberty?

Watch.

http://benfrankln.blogspot.com/

Posted by: benfrankln | May 11, 2010 12:45 PM | Report abuse

One question I have ... and it is neither a qualifier or non-qualifier for the job long run.

As Solicitor General wouldn't she have had some responsibilities crafting the responses and plans for the challenges to Health Care put forth by the various State Attorney generals?

If so, mustn't she recuse herself?

Posted by: chromenhawk | May 11, 2010 2:30 PM | Report abuse

One question I have ... and it is neither a qualifier or non-qualifier for the job long run.

As Solicitor General wouldn't she have had some responsibilities crafting the responses and plans for the challenges to Health Care put forth by the various State Attorney generals?

If so, mustn't she recuse herself?

Posted by: chromenhawk | May 11, 2010 2:30 PM |

=========================================

Absolutely. Just how often might be an issue during her confirmation hearings.

Posted by: bbface21 | May 11, 2010 2:34 PM | Report abuse

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