In The News

Ed Whelan of the Ethics and Public Policy Center and Carrie Severino of the Judicial Crisis Network discuss Elena Kagan's nomination to the Supreme Court.

If you needed surgery, would you hire the successful hospital administrator or the experienced surgeon who spends all his days in the operating room? Easy answer: the surgeon. Unless you're President Barack Obama. He just announced his appointment of Elena Kagan as the next Supreme Court justice, replacing retiring justice John Paul Stevens. But she doesn't have experience as a judge. And she has spent a total of three years actually practicing before a court, two as a young associate and one as the U.S. solicitor general. The intervening eighteen years were spent on the faculties of the University of Chicago and Harvard law schools, with three years off to work in the Clinton White House. By all accounts, she was a successful dean at Harvard Law School. But that doesn't say much about her qualifications as a judge.

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own "threshold" test of the minimal qualifications needed for a Supreme Court nominee.

President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.

I can’t blame my fellow liberals for playing along; if the other side fires, we have to fire back. But there’s one exception. If Solicitor General Elana Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.

Obama's backpedaling is not surprising. Almost 65 percent of respondents, according to a recent Judicial Crisis Network nationwide poll, worry that Obama will nominate a justice who would rubber-stamp his liberal policies.

Dear Friend of the Constitution: Where will our liberties be thirty years from now? President Obama is on the verge of nominating a new Supreme Court justice who will have a lot to say about that. From racial preferences and abortion to property rights and terrorism, retiring Justice Stevens and his three decades of liberal activism did tremendous damage to the Constitution. His replacement has the potential to either build upon or roll back Stevens' "legacy."

Carrie Severino, chief counsel at the Judicial Crisis Network, which works on behalf of conservative judicial nominees, says that the organization has not supported filibusters in the past.

"Every nominee deserves an up-or-down vote," says Severino. "But I would hope that Republicans would be willing to bring up some hard questions."

The hearings, she says, should not be pro forma.

The Judicial Crisis Network, a conservative advocacy group, warned Obama against "packing the Supreme Court with rubber stamps instead of judges. To an activist judge, the Constitution represents an inconvenient truth that they will distort, ignore, or defy to push their radical liberal agenda."