What’s Next After Kagan’s Confirmation?

August 9, 2010
By

Elena Kagan

Washington, DC — The Senate confirmed Elena Kagan for the Supreme Court 63-37 Aug. 5 after massive official scrutiny that, to my mind at least, minimized some  essential factors.

So, the Justice Integrity Project that I lead here opposed her confirmation, drawing in part on my formative experiences covering Connecticut’s federal courts for the Hartford Courant three decades ago.  Editors encouraged us to ask tough questions of public officials high and low, and write up the results without a lot of pre-packaging to shape perceptions.

Over the past few days, several well-meaning friends expressed condolences to me because of Kagan’s victory.  But my group didn’t rely on the ultimate result since we knew at the start her win was assured.  Instead, we took a stand that she, like other nominees, should be assessed on grounds of her basic fairness and her commitment to reasonably predictable results under the law.

In the end, Kagan had the lowest Gallup poll approval ratings of any nominee to win confirmation in recent decades.  To be clear, our start-up civil rights group had no impact on such a broad national result, of course. A powerful bipartisan establishment essentially anointed one of its own without much public enthusiasm, despite such strange cheerleading as a Washington Post editorialist’s column comparing joy from Kagan’s ascendancy to that from Chelsea Clinton’s wedding.

Kagan’s brief career in private practice was solely with Williams and Connolly, a law firm here whose clients included the Post.   As dean of Harvard Law School, she then became one of the greatest fund-raisers in the school’s history while serving on the Goldman Sachs board of advisors much of that time.

The Post and other opinion leaders were so obviously shilling for her that Salon legal commentator Glenn Greenwald stopped writing about the Court vacancy promptly this spring after President Obama nominated her.

Greenwald’s coverage cutoff wasn’t because he was withdrawing his withering criticism of her on civil rights and executive power grounds.  Instead, he regarded opposition as pointless.  For her, as for Rocky Graziano in his long-ago boxing memoir: “Somebody up there likes me.”

Based on her writing and other actions, Kagan can be expected to shift power further toward an Executive Branch that’s vastly more powerful than the one the Framers created and that the country adjusted with post-Civil War amendments establishing additional civil rights that we need for a post-slave society.

As one telling example about her acquiescence in a retreat from a basic fairness, she used her legal gifts last November to argue as Justice Department Solicitor General that the Supreme Court deny former Alabama Gov. Don Siegelman further review on his 2006  corruption convictions.

I’m among the many researchers who have concluded the defendant deserved review (which the Court granted in June), especially after so much evidence that federal authorities framed him for political purposes.  These are the kinds of reasons why I led my group into opposing her June 28, as previously reported in Connecticut Watchdog.

The Constitution-makers emphasized the vital role of Congress in checking executive power.  Kagan, 50, a close friend of Obama and a former top aide to President Clinton, suggests through her writings and other actions that she’s comfortable with curtailing civil rights for suspects, a dangerous long-term trend.

Instead of focusing on such matters, Senate Republicans this summer stirred their base with short-term talking points on such issues as her support for showing support for gay rights by restricting military recruiting at Harvard.  Democrats similarly avoided truly serious scrutiny.  At the end, only Nebraska’s Ben Nelson dared violate Democratic party-line voting.  Even then, he focused on the nominee’s popularity in his state, a banal reason for a senator, given the higher stakes.

We can all do better. The Justice Integrity Project, for example, is ramping up scrutiny of federal judicial nominees at the trial and appeals court levels. This includes retrospective reviews since, in some instances, we’ve already seen sweetheart-style confirmation hearings with glaring omissions in questioning nominees who turn out to be terribly unfair judges. Where’s the accountability for such Senate mistakes?

Let’s look at the House process, also. The House has the responsibility under the Constitution to initiate impeachment actions when warranted.  But the House takes a timid approach to preliminary oversight.  Its recent judicial impeachments stem essentially from criminal convictions, and not protecting the public by scrutinizing patterns of potentially corrupt behavior.

We plan to shine a light on new and appalling situations. The Framers, in their wisdom, avoided a statute of limitations on impeachment actions. So should the court of public opinion.

Early in my reporting career, I twice published stories that cost Connecticut federal judges their jobs, although neither was a presidential appointee with a lifetime post. But each was well-respected, well-entrenched and quietly operating outside what were acceptable bounds of the time — although the misdeeds seem to me, in retrospect, fairly modest by today’s lowered standards.

Researching the specifics then was a professionally risky and otherwise challenging, of course. But what I most recall was the reaction afterward from remaining judges.

They liked the stories, a couple of the most eminent told me privately. They wanted their profession to be honorable, and understood that it sometimes takes an outsider to initiate necessary questions. My news organizations (the Courant and Connecticut Magazine) and I were thus like an office’s daily janitorial cleaning crew, occasionally creating a temporary disruption in what’s essentially a routine and mostly unremarkable function.

By this, I don’t mean to suggest that I know of any potentially career-ending secret of Kagan’s that I researched and wanted to expose. Instead, my point is that oversight procedures need to be more thorough on a routine basis.

In Kagan’s situation, a few suspicious minds have wondered in print this spring whether her expansionist view of presidential power to fight terror threats might stem from a secret family relationship to conservative scholars Donald Kagan and his two sons, Robert and Frederick Kagan. The three male Kagans have been opinion-leaders among those long advocating much-increased U.S. military presence in the Mideast wars and for more U.S. security against domestic terrorism threats.

This speculation about a potentially hidden family relationship draws on several coincidences. Among them, the first names “Robert” and “Elena” are in each family tree, and standard biographical sources are elusive on certain family details.

So, for what it’s worth, I phoned the Yale University historian Donald Kagan this spring at his home in Hamden to inquire.

He generously shared enough time for me to learn that he’d named his son, Frederick, after his best friend, Frederick Marcham (who also had been my college advisor at Cornell University, where he’d been the longtime history department chairman and boxing coach).

More to the point, Kagan told me that he’d never heard of Elena Kagan until she became Harvard’s law school dean, and that she was no relation to him.

Let me share also an even better illustration of how pre-nomination research is just part of the democratic process, not an occasion for undue angst:

In 1979, I interviewed U.S. Second Circuit Court of Appeals nominee Jon O. Newman, then a district judge in Hartford, including a challenge on information I’d dug up from newspaper clips about a long-previous dispute involving him in private practice.

“Is that all you’ve got?!” he responded, with what I recall as a smile.

These days, our legal and societal problems are vastly greater, and so there’s probably less reason for humor. But we should at least remember that we don’t have royalty in this country on the Supreme Court, although we do seem to have a lot of “courtiers” in the news media.

At the swearing-in to the New York bar of my former Courant colleague Mark Stillman two decades ago, I heard the presiding judge encourage all the incoming lawyers to practice their profession vigorously in pursuit of justice, and without undue deference.  The words were particularly apt in my mind:  Mark, as a Courant investigative reporter, had initiated the first impeachment action in Connecticut’s history by co-authoring exposes about a probate judge who conspired to fleece the assets of a senile dowager under his court’s care.

I don’t remember the judge’s name conducting the swearing-in, but do recall what he told Mark and the other new lawyers:  “A judge,” he told the assemblage, “is just a lawyer who knows a politician well enough to get nominated.”

Newman, a former top aide to Connecticut’s Sen. Abe Ribicoff, has become renowned as one of the nation’s most respected judges — and indeed as a giant in jurisprudence.

For the country’s good, we naturally wish the same for Elena Kagan, the 112th Supreme Court justice.

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