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.