Thursday, May 13, 2010

Is Elena Kagan the next Harriet Miers?

Remember Harriet Miers?

Here she is...

In 2005, George W. Bush, still reeling from hurricane Katrina (which was all his fault), nominated Miers, a White House staffer and confidant, to the Supreme Court.

She was doomed from the start. Liberals, bracing for a conservative in the mold of, say, Sam Alito, were almost happy to embrace this relative no-name. What Miers lacked in charisma, she made up for with obscurity. Conservatives were concerned. "Not another Souter!" They chanted. Moderates were non-plussed. "More Bush cronyism!" They mumbled mostly to themselves. Assurances that she was "hard working" fell on deaf ears.

Her announcement was accompanied with little fanfare. No op-eds from friendlies. No press conferences. Just private meetings with Senators.

Then, after a few weeks, she withdrew a nomination that was certain to end in confirmation. Bush nominated Sam Alito, the conservative base was thrilled, liberals called him "strip search Sammy" (Alito literally supports strip searching young girls as often as is possible). The rest is history.

This week gives us Elena Kagan, an Obama confidant with a thin track record. Conservatives, bracing for a liberal in the mold of, say, Goodwin Liu, are almost happy to embrace this relative no-name. What she lacks in charisma, she makes up for with obscurity. Liberals are concerned. "Not another Souter!" they chant. Moderates are non-plussed...

You see what I'm getting at.

This is Barack Obama's last chance to shape the court with a left-wing ideologue. Kagan is almost certainly that, but there is room for doubt that she will be as reliably liberal is justices Ginsburg and Stevens. Why her? Why now?

Ostensibly, her nomination would add to the diversity of the court. However, the White House has forcefully and proactively denied that Kagan is a lesbian. That would be a weird thing to do if she weren't a lesbian. Why not just leave it ambiguous, and use it as an opportunity to paint conservatives as bigots for even caring? Her sexuality will be revealed one way or the other.

Or will it?

Perhaps the furious denials are a sincere attempt to protect Kagan's privacy, with the understand that, in a few weeks, she will again be a relatively anonymous figure. Why contend with the sexuality issue if it isn't going to come up?

Like Miers, Kagan is politically experienced, and close enough to the administration to go through the motions of a trojan horse nomination. Her press schedule has hardly been aggressive.

The administration has, uncharacteristically, allowed the press to define her nomination. If we know anything about her, it is that she is an Ivy League insider with no judicial experience. Elena Kagan excites precisely no-one.

So maybe that's the point. Nominate a dud, only to fire up the base when a Judge Liu or Judge Wood get the nod. If you can get some conservatives on the record questioning Kagan's sexuality (they did it to Miers), all the better to cast opposition to more problematic nominees as the fruit of bigotry.

Of course, I could be paranoid. Kagan has a thin track record, and so will be an easy nomination. If she is another Souter, that really should bother Democrats. He was as reliable of a vote as they come.

So, is she for real? Discuss.


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