Can You Guess Why Elena Kagan Has Never Been a Judge?

A major talking point in the Republican resistance to President Obama's nomination of Elena Kagan to the Supreme Court will be her "lack of judicial experience." It is true that although there is a long history of Justices without prior experience on the bench, Kagan will be the first one in 40 years. But it's worth noting exactly why it is that Kagan never served on the bench: she was caught up in the Republicans' institutional sabotage of President Bill Clinton's judicial nominees.

In June of 1999 Bill Clinton nominated Kagan to be a federal appeals court judge. Orrin Hatch, Republican chairman of the Senate Judiciary Committee, simply refused to schedule a hearing. This was one of many tactics used to block dozens of Clinton appointees, leaving many important judicial offices empty for months and even years. The cost to the nation was not important to political-gaming Republicans.

Nor is this history one of both sides using the same tactics. Republicans have pioneered the use of the filibuster and other tactics to block nominees, and succeeded in thwarting Clinton nominations at a rate far higher than Reagan or either Bush experienced. And, as usual, the hypocrisy is as high as the elephant's eye.

Like the nomination of Sonia Sotomayor, the Kagan nomination can reasonably expected to be successfully confirmed by the current Senate, with its 59 Democrats. But judicial nominations are one of the key battlegrounds in the dangerous evolution of the use of parliamentary maneuvers to stymie the functioning of the government. Like economic and foreign policy, judicial policy requires that the citizens do some homework.

Hey GOP: How low can you go?

Just a quick note to register my disgust with the Republican talking point on the arrest of would-be Times Square bomber Faisal Shahzad: that a terrorist suspect (in this case an American citizen) should not be read their Miranda rights. The reason I want to add my voice to this is because the point was stayed on yesterday by leading national figures of the GOP, and these are politicians with reputations as relatively centrist: Arizona Senator John McCain and former New York Governor George Pataki (and others such as New York Congressman Peter King and Independent Connecticut Senator Joe Lieberman; if there was literally a memo they couldn't have been more on point).

To me, a few different things come together here to make this GOP talking point more outrageous even than usual:

1) These are not the "wing-nuts." These are the national mainstream party leaders.

2) The conservatives have been standing around at their cocktail parties since the 60s deploring Miranda, and habeus corpus in general, and have used the "war on terror" as a vehicle for stripping Americans of their constitutional rights. This cynical practice of the last administration continues unabated.

3) Both McCain, running for his political life against a right-wing challenger in the Senate race in Arizona, and Pataki, running right to position himself for a presidential bid in 2012, are trying to exploit the bomb scare in a completely brazen manner. They don't mind torpedoing any useful discussion of security procedures with their frivolous sound-byte about Miranda rights.

4) In McCain's case in particular, but generally as well, this sound-byte is obviously racist: focusing on Miranda rights links the "war on terror" to fear of immigrants and to the anti-immigrant Arizona law. As I say, in McCain's case this is just too obvious to be missed. The dog whistle has become a bullhorn.

One would like to think that old pros like McCain and Pataki would try to carve out a niche as responsible centrists who could unite the increasingly-radicalized conservative base with the center electorate. If not them, then who? But alarmingly enough (they know things I don't), the Republican national leadership appears to be making the exact opposite calculation.

Put Bill Clinton on the Supreme Court

In the discussion about who President Obama will nominate to fill the Supreme Court vacancy with the retirement of Justice John Paul Stevens, we've been hearing the idea floated that someone with political experience would be healthy for the Court. I'm more inclined to favor a distinguished jurist myself, but I do have a modest proposal if we're going to go with a politician: put Bill Clinton on the Court!

This idea gets more fun the longer one thinks about it. He is, after all, generally recognized as the master politician of his age, whatever else one might think of him. He's not the kind of guy you want wandering around at loose ends, either: the Court is the only box big enough to hold him, and it'd get him out of Barack and Hillary's hair. Idle hands do the devil's work! And he is a former constitutional law professor, after all. And empathy up the wazoo! (At times quite literally, one gathers.) Personal experience with the law, even. And one relishes the thought of the up-the-wall-driving potential the appointment would have for our dear conservative friends. I for one am constantly thinking of new ways to express my feelings for them these days.

True, the confirmation process might be a tad bumpy. But doesn't anybody else miss the gaudy entertainment provided by the Clarence Thomas hearings? (Don't answer that.) I think that the next time Barack, Michelle, Hillary and Bill are all dining together (have they ever dined together as a foursome? Interesting question), Barack should wait until all three are in mid-sip and just put it out there. Fun times! And the most spit-take-worthy thing of all? In all sincerity, I wouldn't mind seeing Bill on the Court one bit!

(Addendum: Although I wrote this post in a jocular spirit, it's turning out to get a lot of attention. A testimonial to BC's enduring charisma, I'd say. One point of information: It doesn't matter (technically speaking) that Clinton lost his law license. A Supreme Court Justice needn't be a lawyer at all, barred, disbarred or otherwise. In fact, the only constitutional requirement for a seat on the High Court is that one be nominated by the President and confirmed by the Senate. That's it. President Obama could put Jerry Springer on the Court if he could get him confirmed. Although, as I stated in the first paragraph, I myself would be more inclined to go with Judge Judy.)

Yes We Did