Kagan’s Anti-Corporate Past is the Real Reason for GOP Opposition

Is the GOP being honest in their critique of Kagan? The round up of Conservative’s arguments against Kagan appears to be baseless, hypocritical and perhaps grounded in her fight against corporate influence on elections.

Elena Kagan, a covert liberal?

Sen. James Inhofe (R-OK) announced opposition to Supreme Court nominee Elena Kagan based on her lack of vetting just hours after President Obama selected her Monday to replace retiring Justice John Paul Stevens. In 2009 Kagan was confirmed with bipartisan support as the first female solicitor general of the United States.

CNN reports:

“”As with her nomination to serve as Solicitor General, I remain concerned about Elena Kagan’s record,” Inhofe said in a statement shortly after Obama announced her as his second pick for the high court. “Now as a nominee to the Supreme Court, her lack of judicial experience and her interpretation of the Constitution also play an important role in my decision to once again oppose her nomination. The position for which she has been nominated has lifetime tenure, and it is concerning that the President has placed such trust in a nominee that has not been properly vetted through a judicial career, having worked mostly in academia and never before as a judge.””

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Sen. Jeff Sessions (Ala.), the top Republican on the Senate Judiciary Committee, also went on record to note Kagan’s “lack of judicial experience and short time as solicitor general.”

The GOP does not have a leg to stand on when it comes to criticizing a candidate over “lack of vetting”. It was just a year and a half ago that they were calling any questions of then Vice Presidential candidate Sarah Palin’s lack of experience “sexism”, and their epic failure to vet her was revealed for the world to see over the painful course of the month and a half campaign.

By most accounts, Kagan is a moderate who deeply disappoints liberals, with the New York Times noting:

“The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base…..

Ms. Kagan addressed the point herself 15 years ago in the University of Chicago Law Review: “Herein lies one of the mysteries of modern confirmation politics: given that the Republican Party has an ambitious judicial agenda and the Democratic Party has next to none, why is the former labeled the party of judicial restraint and the latter the party of judicial activism?””

Given this, it’s tough to see the already gearing up GOP opposition as anything other than more opposition for opposition’s sake. They will, of course, frame their opposition under the guise that Obama is trying to radicalize the court by turning it into an activist court, much as the Right has been actually doing in their blatant attempts to stack the court with Justices who might reverse some of the laws (e.g., Roe v Wade) they find most egregious. It is this argument that you will hear the most during these confirmation hearings. Here’s an example of how it appears after going through the spin machine:

The Wall Street Journal:

“In selecting Elena Kagan to be the country’s next Supreme Court Justice, President Obama has tapped the legal world’s version of himself: a skillful politician whose cautious public persona belies a desire to transform the court and shape a new Constitutional liberalism.”

Conservatives are afraid that Obama will transform the court, but he is supposed to impact the court, since he is the Constitutionally elected President and appointing nominees who reflect his values is one of the manifestations of the voters choice of him. Once again, Conservative opposition also comes down to their bitterness over losing the election and their scathing embarrassment of the poor implementation of their ideas during the Bush/Cheney reign.

But perhaps the real issue behind their opposition is Kagans’ record for standing up for the rights of ordinary citizens and shareholders against corporations in her work as solicitor general. Kagan argued Citizens United v. Federal Election Commission before the Supreme Court, defending campaign finance reform against special interests spending. If so, this is at least an ideological argument that they could make, but one which would require them to come out pro-corporation at a time of great populist anger directed at Wall Street.

Obama said during the nomination ceremony that Kagan had an “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.” In this way, Obama is reinforcing the choice he made in Sotomayor – another person who is bringing her real-world experience to the court, in addition to her legal expertise. It may be this that the GOP objects to as well, for the court has long been comprised of a majority of white, male Americans.

If confirmed, Kagan will be the fourth woman ever seated on the nation’s highest court. And, for the first time, the Supreme Court would have three women serving together. While I would not be in favor of Kagan just because she is a woman, she does seem to encompass the President’s pragmatic and open-minded approach to the world.

The Republican Party is the party most likely to attempt to use the court for activism, in their relentless attempts to turn back the clock on social justice issues and their pro-corporate agenda. One wonders when the Republican Party’s constant cries of “Wolf!” will finally wear thin on a constituency who still trust and approve of this President and are more worried about paying their bills than they are a supposed radicalization of the Supreme Court.

Sarah Jones

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