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Conservatives and the Kagan 'rubber stamp'

So, has conservative reaction to Elena Kagan's nomination to the Supreme Court more or less matched up with the talking points I expected? Let's see.

From Carrie Severino, chief counsel of the Judicial Crisis (formerly "Confirmation") Network:

Obama wants to pack the court with reliable liberal votes to rubber-stamp an agenda that he knows the American people would not accept. What better way than to appoint a loyalist from his own Department of Justice with a thin public record to advance his leftist legacy through the Court.

That's actually an argument I didn't single out, but it's one you're going to hear again.

Ever since her efforts to get on the D.C. Circuit were stymied for fear of her extremist views, Kagan has bent over backwards to avoid taking public positions on hot-button topics. Except when she can’t help herself, like when she banned military recruiters during wartime from Harvard Law School because their Democrat-initiated “don’t ask don’t tell” policy was, in her words, “a moral injustice of the first order.”

Senators have a solemn duty to thoroughly examine each nominee’s views and to reject those who would not fairly apply the law, but would redefine it to accommodate their own values and beliefs. In the past Solicitor General Kagan has advocated Senate hearings that thoroughly examine a nominee’s judicial philosophy; senators must hold her to her own standard, particularly given the scant record of her personal viewpoints she has carefully maintained. Nothing less than the Constitution itself is at stake.

That's three of my five. Not bad!

Here's Rep. Lamar Smith (R-Tex.):

Ms. Kagan must demonstrate that she was not chosen by the President as a political ally who will rubber stamp his agenda -- but as an impartial jurist who will uphold the Constitution’s limits on the proper role of the federal government and defend the liberties of everyday Americans.

With no judicial experience to evaluate, the Senate must conduct a thorough investigation into all areas of her record to determine her commitment to the Constitution. For example, during her tenure as Dean of Harvard Law School, Kagan supported banning military recruiters on campus because of the military’s “don’t ask, don’t tell” policy. The Supreme Court unanimously rejected the arguments of Ms. Kagan and other academics.

The "rubber stamp" argument again, swirled together with the recruiter story.

Here's Rep. John Boehner (R-Ohio):

Given her lack of judicial experience, or time spent as a practicing lawyer, other aspects of her record must be thoroughly examined, including her troubling decision to ban United States Armed Forces recruiters from Harvard Law School. As one liberal journalist wrote recently, "Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement."

The "liberal journalist" is former New Republic editor Peter Beinart, who's managed to synthesize TNR's ability to be cited by conservatives whenever it criticizes liberals.

Here's Penny Nance of Concerned Women for America:

In her disdain for the military, Elena Kagan considers her own views and opinions as more important than obeying the law and equipping the country with the best fighting force in the world. We need justices who put national security over the feelings or demands of special interest groups. We urge the US Senate to oppose the nomination of Elena Kagan. We want a justice who will defend the Constitution, support our families and uphold the right to life and traditional marriage.

CWA also claims that Kagan is "an extreme Leftist best known for banning military recruiters."

What do I make of this? The military recruiter argument is peaking right now, something that has to irritate critics like Glenn Greenwald who want to make more substantive critiques of Kagan's record and philosophy. The "rubber stamp" argument is bubbling under, although I don't know how sustainable it is -- yes, polls suggest that Americans prefer nominees with judicial experience, but defining the role of the solicitor general as a "rubber stamp" is a hard sell.

And Alex Pappas reports on the domain names snatched up or still available for the Kagan fight. ( has been purchased by an anti-abortion-rights group.)

By David Weigel  |  May 10, 2010; 12:00 PM ET
Categories:  Supreme Court  
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