Tuesday, May 11, 2010

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.

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