I once saw a cartoon, which depicted a child in grade school refusing to answer a question from the teacher. The child, who had aspirations of becoming a member of the Supreme Court, was afraid that the answer to the question would come back to haunt him during the confirming hearings.Since the unsuccessful attempt to elevate Robert Bork to the Supreme Court – a failure blamed on the fact that Bork had too much of a paper trail where he opined on many controversial issues – potential nominees, like the child in the cartoon discussed above, try to avoid leaving a paper trail. And even if they do leave this paper trail, it is void of controversy, or is articulated in benign judicial prose.
As for Elena Kagan, her record seems to be in the middle of the road… you know this when there are left wing and right wing groups opposing her nomination.
The only serious hurdle Miss Kagan must overcome is the stance she took at Harvard, where she tried to prevent the Armed Forces from recruiting on the Harvard campus because of its “don’t ask don’t tell” policy on gays in the Military. Ironically, it was President Clinton, who hired Kagan as White House Counsel, who implemented the Armed Forces “don’t ask, don’t tell.”
The consensus of the pundits is that Kagan will sail through the confirmation hearings. The Republicans will put up a fight because that is the process… but Kagan, from her past writings and opinions on Constitutional matters, doesn’t seem to be so off kilter to warrant a spirited fight like those we have witnessed with Clarence Thomas or Robert Bork.
The Supreme Court in many cases has a majority of five, with Justice Kennedy often being the deciding fifth vote. If Kagan can convince Kennedy on any issue, the Democrats may even win some victories on controversial Constitutional issues before the Supreme Court.
The fight for Kagan’s nomination is seen as less combative because she is replacing a Liberal justice, and the powers that be see merit in maintaining that delicate balance.
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