The Mad Parson

I don’t know anything about Elena Kagan. I don’t anything about the judiciary. I know precious little about the court confirmation process. So, as far as I can tell, I’m about as qualified as any of the other pundits weighing in. So here goes. . . .

I think conservatives oppose the Kagan nomination at their own peril. Some think that President Obama nominated Solicitor Kagan because he’s weak and doesn’t have the political currency to proffer someone left enough for his tastes. I’m not sure about that. Perhaps that’s the case, but my read on this president is that he’s sufficiently ideological to ignore such questions of political capital.It really doesn’t matter. Whether made from a weak position or no, the Kagan nomination is a masterstroke, irregardless. (Well, of course, ‘irregardless’ is horrid writing, but I’m from South Carolina, dear reader. In South Carolina, we’re taught early on to shag to beach music, elect sleazy governors, and use ‘irregardless’ in sentences.)

The solicitor’s lack of a real paper trail is a boon to her nomination. While it makes both conservatives and liberals a bit queasy, since most folks like a sure thing, it shifts the confirmation process in the confirmand’s favor, as there is no real albatross to hang around her neck. Yes, there’s the military recruiters on college campuses bit, but DADT is a fundamentally flawed policy, so I doubt there’s much traction there. Point for Obama.

She appears to work well with conservatives. Critics will wax cynical about this, but Obama-the-candidate promised postpartisanship, and if he’s delivered nowhere else, he can say he tried here. If Republicans attack too hard, they will be seen as being the virulent hyperpartisans on the cusp of the election. Point for Obama.

The solicitor is a minority. Yes, of course, I do mean the gender angle. But she’s also sensitive to race minority issues having worked for Thurgood Marshall. And there’s the hushed rumormongering about lesbianism. The under-the-breath whispers on sexuality actually work in favor of confirmation. If any Republicans broach the subject, they’ll look like Fred Phelps-homophobes. So that discussion is off the table and any discussions on the constitutionality of gay marriage have to be conducted carefully. Point to Obama.

And she’s not a judge. That may be a setback to some–even some liberals–but really, do we want a Court populated with nothing but judges? Isn’t there, at some point, a fear of judicial inbreeding? A law professor here, a litigator there, the occasional contract attorney can’t be a bad thing, all things considered. If you want to talk about diversity, this is one way to do so. Point to Obama.

Of course, that cuts both ways. Should the solicitor be confirmed, we will become slightly more homogenous, with six Roman Catholics and three Jews. We are still fairly far away from a Muslim justice, unless I miss my guess, and even farther away from a good agnostic. But it would be nice to have a decent Orthodox justice, or at least a token Protestant, now that we’ve lost one. This is hardly an appropriate threshold to meet for confirmation, however, so the point still goes to Obama.

Result? The Republicans will be fools to try to stop this, and yet at least a few of them will need to pander to their constituencies and appear as though they are in strong opposition. Look for them to press the confirmand on the Commerce Clause, executive power, and perhaps immigration law. Anything else will play right into Obama’s hands.