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May 07, 2010

SCOTUS Pick Coming This Weekend?

Behold the Obama administration at work...there's a leak, announcing that the pick will be leaked soon.

Look for President Obama to name his Supreme Court pick Monday, and look for it to be Solicitor General Elena Kagan, a former Harvard Law dean. The pick isnít official, but top White House aides will be shocked if itís otherwise. Kaganís relative youth (50) is a huge asset for the lifetime post.

Kagan has obviously been at or near the top of everyone's list so it's not really a surprise if she's the choice.

Put aside the fact that we aren't going to like anyone Obama puts up and accept that Kagan is a liberal, this is not the hard-core lefty the base really wants. Kagan is not Diane Wood with her unabashed pro-abortion track record.

There's already some preemptive push back on Kagan for being insufficiently open to hiring women and minorities while Dean of Harvard Law. She brought in too many damn white men for some people's taste. If you follow the Politico link through to Salon, you'd get the idea that Kagan was a member of the Klan or something.

She was confirmed 61-31 to be Solicitor General last year. She got 7 Republican votes. Interestingly they included John Kyl, Orin Hatch and Tom Coburn. Strangely Specter voted against her but mostly because he thought she ducked too many questions. Expect him to flip on that in heart beat. He's principled like that. I'm not sure how Lindsey Graham voted in committee (he missed the full Senate vote) but he's made nice noises about her recently.

Unless something new and damaging comes out (and no, whether or not she's gay doesn't count), Kagan would likely win confirmation. Elections, consequences, some assembly required.

Meanwhile, the top Republican on the Judiciary Committee, Jeff Sessions (who voted against Kagan last year) lays out the case against Obama's judicial philosophy.

President Obama said recently that his court nominee must have "a keen understanding of how the law affects the daily lives of the American people." This is nothing more than another thinly veiled attempt to justify judicial activism. What matters is what the Constitution says, not a judge's personal take on what laws are best for the country.

Consider Goodwin Liu, the University of California at Berkeley professor whom the president nominated to the U.S. Court of Appeals for the 9th Circuit. Liu has argued that judges should treat the Constitution as an infinitely flexible document to be interpreted through nebulous "social understandings" and the consideration of foreign law. This activist philosophy led Liu to conclude that the Constitution provides a right to government health care and welfare -- a remarkable view of a document designed to curb the excess of federal power.

The American people overwhelmingly disagree with this approach to judging. So the president is playing a rhetorical game, accusing the court's conservative, or traditional, justices of being the real activists: harboring a secret bias for big businesses. It is an absurd suggestion.

This is the real value of opposition to just about anyone Obama will nominate. It's really hard to defeat a Supreme Court nomination, especially when the opposition party has 41 Senate votes. Republicans can however draw some sharp distinctions about the appropriate role of the courts and the types of justices each party supports. That's a fight I think plays well for us.

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posted by DrewM. at 01:04 PM

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