Topic: Elena Kagan

Can We Find Out Who Kagan Is Before She Takes the Bench?

Jennifer Rubin 06.29.2010 - 7:25 AM

Election-law professor Rick Hansen (h/t Taegan Goddard) writes:

If you were trying to schedule Senate hearings on a Supreme Court nominee to garner the least attention possible, you could not have picked a day better than today. The sad death of Senator Byrd; the Supreme Court decides four major cases, including the gun case; Congress poised to pass a major financial reform bill, with now some uncertainty as to timing given the death of Sen. Byrd; the Afghanistan McChrystal fallout; continued concern over BP’s cleanup operations. It is no wonder that many Americans don’t know who Elena Kagan is.

Actually, they don’t know who she is because there is not much that is knowable. Most senators don’t have much more than her biography, her slender body of writings, and a pleasant office visit by which to assess her. Sen. Jeff Sesssions set forth the problem in his opening remarks:

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it’s not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

We know less about this nominee than we did about every other justice at this stage in the confirmation process. Part of this problem may be solved by a spasm of candor from the nominee. That’s not likely, and even if she is more forthcoming than expected, we have no basis by which to assess whether she will be a competent jurist. Democrats who rubber-stamp her on the theory that the White House must know something they don’t are taking a risk — and neglecting their constitutional obligation. I suppose it’s old-fashioned to expect that senators read groundbreaking legislation before they vote and to demand answers from an underqualified, stealth nominee. (These are the same folks who wax lyrical about Sen. Robert Byrd’s defense of the world’s “greatest deliberative body.”)

Unfortunately, senators insist on blathering on, asking unintelligible questions that give nominees the chance to run out the clock and flatter their questioner by commending the blather. Here’s a suggestion for the senators: ask a questions that are fewer than 20 words, ask them again if she doesn’t answer, keep track of the list of unanswered questions, and demand that she provide real answers before a vote is taken. Obama got through a campaign without being adequately vetted; it’s not a standard we should emulate for a lifetime Supreme Court appointment.

Flotsam and Jetsam

Jennifer Rubin 06.29.2010 - 7:00 AM

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Supreme Court Bats .500

Jennifer Rubin 06.28.2010 - 1:27 PM

In case you had any doubt about the centrality of the Supreme Court in our society, the Court handed down two critically important decisions today.

In McDonald v. Chicago, the Court held in a 5-to-4 decision (not surprisingly, Justice Sonia Sotomayor was in the minority) that the Second Amendment is applicable in states and localities via the Fourteenth Amendment. Local and state handgun bans will certainly be struck down, although the Court left room for some regulation, as it does with regard to other fundamental rights. A generation’s worth of conservative legal scholarship and thoughtful jurisprudence have vindicated a right so central in the Founders’ vision that it grabbed the No. 2 spot in the Bill of Rights. Elena Kagan, what say you on this?

In the other headline grabber of the day, Christian Legal Society v. Martinez, the Court ruled that schools can require religious groups to open their doors to everyone, even if it violates the members’ beliefs (well, the original members’ beliefs). Specifically, the issue was “whether a public institution’s conditioning access to a student organization forum on compliance with an all-comers policy violates the Constitution.” The Court held it was a content-neutral policy (e.g., Republican clubs have to take Democrats; Democratic clubs must take Republicans), so there was no First Amendment violation. (The inanity of such a policy is further proof that law schools, Hastings in this case, are fonts of many things except wisdom.) So pro-choice advocates gain entry into Catholic groups, Muslims may join the Hillel, and yes, gun-ban advocates can join an NRA group. It seems shocking, I am sure, to many Americans that the rights of association and religion don’t protect against mischief-making. In dissent, Justice Sam Alito argued:

Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.

While there can be no question that the State of California could not impose such restrictions on all religious groups in the State, the Court now holds that Hastings, a state institution, may impose these very same requirements on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints.

Alito adds a final, devastating critique of the majority’s reasoning:

In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.” … With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s “demise” (who may be kept out) is hopelessly vague.

The result, I suspect, will not be chaos but rather the privatization of — and thus discrimination against — religious groups, which will no longer enjoy school financial support, use of facilities, etc. It is a perverse result but one that, for now, is the law of the land. Is Kagan keen on this one?

Don’t expect her to answer queries on either of these cases. The senators — both liberal and conservative — would do well to insist she does, however.

The Kagan Confirmation Hearings

Jennifer Rubin 06.28.2010 - 10:04 AM

I’m going to go out on a limb (not really): the confirmation hearings will be dull as dishwater and Elena Kagan will be confirmed easily. What’s more, I doubt that she will heed the advice — or that the Senate will insist that she does – of the Washington Post editors:

Ms. Kagan presents the committee with a challenge it has not encountered for four decades: how to judge a nominee with no prior judicial experience. … It should be possible to engage in a conversation about the processes employed by judges without inappropriately boxing Ms. Kagan into a corner or improperly seeking her commitment on a future vote. A discussion of this type would provide a valuable and public test of Ms. Kagan’s knowledge of the law, her appreciation or displeasure with different theories, and her skill in communicating clearly and in layman’s terms.

Given her skimpy litigation experience and writings and her lack of a judicial record, it would be entirely appropriate for the Senate to insist on some level of specificity from her, and some evidence of her judicial reasoning skills. Frankly, her record is so devoid of useful information that it would seem entirely reasonable for the Senate to refuse to confirm her unless and until she coughs up some answers. It’s not going to happen, in part because she’s probably the least objectionable nominee conservatives could hope for. But then, senators should explain how, with no meaningful information available to them, they can possibly fulfill their constitutional obligation to provide advice and consent for a lifetime appointment.

Flotsam and Jetsam

Jennifer Rubin 06.28.2010 - 7:04 AM

Candid. Israeli Vice Prime Minister Moshe Yaalon’s interview should be read in full. A sample: “Yaalon said bluntly that he believes Iran’s regime is ‘not sure that there is a will’ on the part of the United States right now to exercise the military option against Iran’s nuclear facilities. … When asked if he felt the Obama administration was open to military action against Iran, Yaalon said that, according to the traditions of Israel’s forefathers, righteous people hope that the job might be done by others. On the other hand, he said, there is another old saying that goes like this: ‘If I’m not for myself, then who is for me?’ He added, ‘So we should be ready.’”

Intriguing. And the timing couldn’t be worse for him: “First it was President Barack Obama, then White House Chief of Staff, Rahm Emanuel, now U.S. Senate Candidate Alexi Giannoulias is joining the Rod Blagojevich corruption trial subpoena list.” His opponent pours salt in the wound: “[Rep. Mark] Kirk’s campaign said the development is part of a ‘troubling pattern’ with Giannoulias that includes regulators shutting down his family’s Chicago bank in April after it failed to raise new capital. ‘Now we’ve learned Giannoulias’ name has come up on federal wire taps talking about the Illinois Senate seat and he has been subpoenaed in former and disgraced Governor Rod Blagojevich’s public corruption trial. This revelation raises additional questions about Alexi Giannoulias that he needs to answer,’ Kirk spokeswoman Kirsten Kukowski said in a statement.”

Effective. Timothy Dalrymple dismantles the mischaracterizations by liberal Christians of the Tea Party movement, and includes this on taxation: “To resent a tax hike (or the prospect of one) is not to neglect the needy, and to wish to retain control over the funds one has secured in order to care for one’s family is not necessarily selfish. Conservatives generally are more generous with their giving than liberals, yet they resent it when a distant bureaucracy extracts their money in order to distribute public funds to the special interest groups on whose votes and donations they rely. Conservatives would prefer that care for the needy remain as local and personal as possible.”

Curious. Who are the 32% who view Eric Holder and Janet Napolitano favorably? “Forty-two percent (42%) regard the attorney general unfavorably, with 26% who have a Very Unfavorable opinion. One-in-four voters (26%) still don’t know enough about Holder to venture any kind of opinion of him. This marks a very slight worsening of the numbers for Holder from last August just after his announcement that the Justice Department was investigating how the Bush administration treated imprisoned terrorists.”

Explosive. A Justice Department trial team lawyer goes public: “Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law. Others still within the department share my assessment. The department abetted wrongdoers and abandoned law-abiding citizens victimized by the New Black Panthers. The dismissal raises serious questions about the department’s enforcement neutrality in upcoming midterm elections and the subsequent 2012 presidential election.”

Grouchy. The left is dismayed again: “On the eve of Elena Kagan’s Supreme Court confirmation hearings her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.”

Frightful. From an MIT professor: ”The president should nominate Paul Krugman to replace Peter Orszag as director of the Office of Management and Budget (OMB).” Because the deficit plainly isn’t big enough, and we’ve been too miserly in our spending.

Unfair? Maybe. Ezra Klein, who recommended Dave Weigel as a “conservative voice,” seems to have gotten away scot-free, while Weigel had to resign and his bosses had to scrape egg off their faces.

Flotsam and Jetsam

Jennifer Rubin 06.24.2010 - 6:27 AM

Doesn’t sound kosher: “Decoy Jews.”

Doesn’t sound like a problem easily fixed: Noemie Emery on the oil spill writes, “Initially, the diagnosis was that Mr. Cool perhaps had an emotional deficit — the downside of all that cerebral detachment — but this wasn’t quite accurate: He had, it turned out, a lot of emotion, but most of it (like with Hayward and the rest of the people at British Petroleum) turned more or less on himself.”

Doesn’t sound like a nominee who’s going to be much help to Obama: “Forty-two percent (42%) of U.S. voters now believe Supreme Court nominee Elena Kagan should not be confirmed following the Senate hearings scheduled to begin next week. That’s up nine points from the week President Obama announced her nomination and the highest level of opposition to date.” Maybe it’s not Kagan but anything Obama that so many Americans are opposed to.

Doesn’t sound like they are kidding: “Former New York Gov. Eliot Spitzer and 2010 Pulitzer Prize winning columnist Kathleen Parker will co-host a new hour long CNN primetime news program starting in the fall as the nation prepares for the 2010 midterm election, the network announced Wednesday morning.” I look forward to Parker’s unbiased take on Sarah Palin’s impact on the races and Spitzer’s insights on morality. Maybe John Edwards can guest-host.

Doesn’t sound like California Democrats are thrilled with their nominee: “California Democrats are starting to worry that gubernatorial nominee Jerry Brown — who hasn’t had a truly competitive election in three decades — isn’t ready for the 21st-century campaign trail. Since the general election kicked off two weeks ago, Brown — the state attorney general and former governor with a well-known penchant for micromanaging all aspects of his campaigns — has made news for all the wrong reasons, while motoring along without any evidence that he is assembling a basic infrastructure for a statewide race.”

Doesn’t sound like government can spend its way out of a recession: “Purchases of U.S. new homes fell in May to the lowest level on record after a tax credit expired, showing the market remains dependent on government support.”

Doesn’t sound like switching generals is going to change things. James Carafano: “It is still the president’s job to win the war and he is the one accountable to the American people. Nothing has really changed: the timeline is bad; by the military’s own estimate there are too few enough troops; and failure is not a good option.”

Doesn’t sound like the family name is an asset: “Nevada gubernatorial candidate Rory Reid (D) is on the air with his first campaign ad and it’s missing one thing: his last name.”

Doesn’t sound like the 17 percent have been paying attention: “New York State government is dysfunctional, 83 percent of voters say, the highest number ever measured in the state, according to a Quinnipiac University poll released today. … ‘New Yorkers are fed up with Albany. The resentment is bigger than we’ve ever measured. Just about half think that the whole Legislature should be voted out of office — even their own state senator and Assembly member,’ said Maurice Carroll, director of the Quinnipiac University Polling Institute.”

Thirty Days to Go

Jennifer Rubin 06.21.2010 - 1:52 PM

Here’s a headline that should cheer conservatives: “Countdown to August; 30 workdays left.” Indeed, it should cheer all Americans, for that is not much time at all for Democrats to do any more mischief. A chunk of that will be taken up by the Elena Kagan Supreme Court confirmation hearings. This brings a smile to the faces of conservatives who have wrestled the Obama agenda to the mat: “How can the Senate expect to pull off an energy bill or even consider immigration when it’s paralyzed by bills that used to be a slam-dunk, like war funding?”

As the report notes, the unwillingness to do more legislating isn’t only on the GOP side of the aisle:

Driven by a White House that wants to keep racking up accomplishments, Reid continues to add big-ticket items to the Senate agenda — like energy and immigration — while fellow Democrats keep trying to take them off. President Barack Obama wants a quick confirmation for Supreme Court nominee Elena Kagan, but he also wants an energy bill and a final deal on Wall Street reform. But with just 30 workdays remaining before senators check out for the August break, Democrats are fatigued, still have a health care hangover and are increasingly pessimistic about what can actually get done.

The short time frame should also please Democrats, who now must admit that much of what they have done up until now has been unhelpful to their political fortunes. Better no more “accomplishments” than another unpopular measure over which they will be attacked.

The Deans Vote Yes for Someone Like Them!

Jennifer Rubin 06.16.2010 - 8:00 AM

The headline is from the Washington Post: “69 law school deans endorse Kagan in letter to Senate.” OK, after “duh,” my first reaction is that this is precisely what is wrong with Elena Kagan. She has spent most of her professional career flattering and being flattered by utterly like-minded liberals. And remember, it was this “club” that decided that the Solomon Act was unconstitutional, a legal judgment that eight Supreme Court justices rejected. Moreover, their praise is really without much basis in fact, and at points misleading:

The letter says that Kagan “excels along all relevant dimensions desired in a Supreme Court justice.” It says her “writing in constitutional and administrative law are highly respected and widely cited.”

As to the first, well, judging and a few years of litigation would be nice. As to the second, only the White House actually believes she is a scholar of any note. Her meager writings are conventional and uninteresting, as even liberal supporters will admit.

But we also learn that there are no letters of opposition. It’s not hard to figure why. She is the most innocuous and least “dangerous” nominee from the perspective of conservatives, who view her as inexperienced and an intellectual lightweight. They also take note of the many cases from which she will be recused and figure they will get the equivalent of a Court power play (i.e., the other team will be down a man). Liberals are unenthusiastic and disgruntled for the very reason conservatives are pleased. In addition, they suspect she’s an ideological squish. But they have enough problems with this president and this election without staging a coup against the nominee.

So she will sail through, the second Supreme Court slot for which Obama missed the chance to find his liberal Scalia. Conservatives should be (and many are) thankful.

Flotsam and Jetsam

Jennifer Rubin 06.10.2010 - 7:00 AM

Not any doubt where Obama’s priorities lie. And thankfully, not everyone is confused as to who’s responsible for the flotilla incident. “Turkey sends a thugs bunch of Jew-baiting Al-Qaeda friendly street-fighters on a floating lynch party and the one party chided by name is … Israel. Well, those pesky facts aren’t too hard to pin down Mr. President–the folks you’ve pinned your peace hopes on are laughing in your face and rolling you like a duck pin.”

Not a good sign when Iran’s assessment is saner than Obama’s: “Iranian president Mahmoud Ahmadinejad said resolutions such as the one passed by the U.N. Security Council today ‘have no value … it is like a used handkerchief that should be thrown in the waste bin.’”

Not holding my breath: “The main issues inside the conference still include whether and how to meet the Obama administration’s demand for an exemption from new sanctions for countries that are deemed to be ‘cooperating’ with U.S. efforts. Republican lawmakers worry that the White House will use that to broadly exempt some of Iran closest business partners, such as Russia and China. ‘It is clear the president’s policy has failed. It is now time for the Congress to approve the Iran sanctions bill currently in conference committee, without watering it down or plugging it full of loopholes, and then the president should actually use it,’ said Senate Minority Whip Jon Kyl, R-AZ.”

Not even her Washington Post colleagues can stomach Katrina vanden Heuvel’s “Bush is a Nazi” rant: “Mengele and his cohorts performed grotesque operations that left his victims with permanent physical, emotional and psychological scars — if they were lucky enough to survive. Most did not. Sometimes death was the objective; he would at times kill his ‘patients’ so that he could get right to the business of dissecting the body. This is monstrous. This is evil incarnate. This is not what the Bush administration did.” Why would the Post editors allow someone who can’t grasp this to write for them? (Really, a single Nation is one too many. Her role in the persecution of a Soviet dissident was covered by COMMENTARY in June 1988.)

Not a day on which this headline is inapt: “Beinart Gets It Wrong Again.” Hard to believe he knows even less about U.S. politics than he does Israeli politics, isn’t it?

Not every Democrat has lost his moral compass: “A member of Attorney General Richard Blumenthal’s staff, himself a former major and judge advocate in the U.S. Marines, is calling Blumenthal a liar and disgrace to the Marine Corps for representing himself repeatedly as having served in Vietnam.”

Not a friend in sight: “As Sen. Blanche Lincoln (D-Ark.) pivots from her surprise primary victory on Tuesday night to her general election run against Rep. John Boozman (R-Ark), she finds herself deserted both by traditional allies and outside groups that helped her win the nomination.” ( h/t Ben Smith)

Not going to waste time or money on her: “It’s nice for Blanche Lincoln that she won the runoff in Arkansas last night but I hope that no groups that care about getting Democratic Senators elected spend another dollar in the state this year. That doesn’t have anything to do with her ideology — judging her worthwhileness there is not part of my job as a pollster — but there are just a boatload of races where Democrats have a better chance to win this fall and could use their resources more wisely.”

Not winning support: “Though the vast majority of voters remain confident that Elena Kagan will be confirmed by the Senate to the U.S. Supreme Court, the number who oppose her confirmation has risen to its highest level to date. The latest Rasmussen Reports national telephone survey of Likely Voters shows 33% think Kagan should be confirmed as a Supreme Court justice. But 41% do not think she should be confirmed.”

Not a class act: “White House Press Secretary Robert Gibbs said Wednesday there have been no second thoughts over President Obama’s coarse language directed at oil giant BP earlier in the week. ‘No, I have not heard any regrets about the language,’ Gibbs told reporters in his daily White House briefing.”

Not only Andrew Sullivan is obsessed with Sarah Palin’s breasts.

Not rallying around this character: “Today, South Carolina Democratic Party Chair Carol Fowler asked Alvin Greene to withdraw from the race for US Senate. Greene, a resident of Manning S.C., was the apparent winner of the Democratic Party’s nomination for U.S. Senate in yesterday’s primary. Since the election, the Associated Press has revealed that Greene was recently charged with disseminating, procuring or promoting obscenity after showing obscene photos to a University of South Carolina student.”

Did Obama Lose a Vote for Kagan by Stiffing Specter?

Jonathan S. Tobin 05.28.2010 - 2:05 PM

For those who doubted that there is life after death — at least after political death — according to the Daily Beast, Arlen Specter may use his last months in office to exact revenge on President Obama for stiffing him during the last days of his ill-fated attempt to win the Democratic nomination to retain his Senate seat.

The Beast’s Benjamin Sarlin speculates that the always-shifty Specter may get even with Obama for failing to show up as promised at rallies in Pennsylvania in the waning days of the primary to boost his candidacy. After disastrous appearances boosting presidential favorites in Massachusetts, New Jersey, and Virginia in the past year, Obama wisely chose to avoid a repeat of those fiascos. All this leads some Specter associates quoted by Sarlin to think that the always-cranky senator may turn on Obama and shift to the right on some votes in the seven months left to him in the upper chamber.

The first victim of Snarlin’ Arlen’s payback could be Obama’s Supreme Court pick Elena Kagan, whose nomination helped remind Pennsylvania Democrats of Specter’s GOP past, since he voted against her confirmation to the post of solicitor general only last year. Freed from the need to appease liberal Democratic voters — who wound up flocking to successful challenger Rep. Joe Sestak anyway — former Specter staffers Roger Stone and Dave Urban both say they’d bet the senator will find a reason to vote against her again, if for no other reason than to poke the White House in the eye.

But the problem with this theory is the same as any other prediction of Specter’s behavior. Anyone who tries to figure out how he will come down on an issue using any rationale other than Specter’s self-interest is bound to fail. Moreover, while it makes sense to think that the 80-year-old Specter will now fade quietly into the night after what amounts to a rejection by both parties in the past year (since the only reason he fled to the Democrats was because he knew he would be beaten in the GOP primary by Republican Pat Toomey), it’s hard to imagine how a man so addicted to the prestige and power of public office will adjust to private life. So it is just as likely that Specter may hope that a few more months as a loyal Democrat, including swallowing the bitter pill of campaigning for Sestak in the general election, will earn him something from Obama after January.

While the notion of Obama’s giving him any sort of post may be a fantasy, perhaps a man who loved foreign travel on the government’s tab as much as Specter did harbors hopes of doing so again in some capacity other than that of senator. Given his long love affair with the Assad regime in Syria, Specter may even dream of some involvement in the Middle East on behalf of Obama. Of course, Obama would have to be crazy to trust Specter in such a capacity (or any capacity, for that matter), but as tempting as revenge for his last-minute betrayal by Obama may be, the senator’s ambition to continue his career in some way might be enough to keep him in line. If Specter sticks to his pre-primary pose as a loyal supporter of Obama by voting for Kagan or working hard for Sestak, whose poor record on Israel was trashed by his own backers, then it may be that the senator hopes that we haven’t heard the last of him.

Flotsam and Jetsam

Jennifer Rubin 05.27.2010 - 7:00 AM

Gov. Bob McDonnell better get some decent staff. First, he leaves slavery out of a Confederate History Month proclamation, and then he hires Fred Malek without knowing that “in 1971 [he] compiled a list of Jews in the Bureau of Labor Statistics at the president’s request, an action that has been the subject of numerous articles and for which Malek has repeatedly apologized” or that Malek “recently paid a $100,000 civil fine related to his firm’s work with Connecticut’s pension fund.” Unforced errors will kill you in baseball and in politics.

Elena Kagan better reveal more about her judicial philosophy or a bunch of senators are going to oppose her nomination. After all, ”senators, interest groups and the media [are trying] to piece together a portrait of the solicitor general’s views from scraps of speeches, scholarly articles and actions as a member of two Democratic administrations. Because Kagan, 50, has never been a judge and has not published a major work since 2001, her record lacks the ‘paper trail’ that other nominees in recent years have had. But it also seems at times contradictory, or at least ambiguous.”

Obama better be willing to send more than 1,200 National Guard troops to secure the border. Not even CBS News thinks it’s enough. “Some law enforcement officials along the border said they worry that Mr. Obama will repeat Bush’s mistake by limiting the troops to support roles, such as conducting surveillance and installing lighting, rather than letting them make arrests and confront smugglers. They also believe the scale of the force — one-fifth of the size of the one sent by Bush — is too small to make a difference along the length of the 2,000-mile border.” I’m not in favor of the Arizona immigration law, but it sure did get Obama’s attention.

Obama better pay attention to this poll: “Forty-five percent disapprove of the Obama administration’s handling of the spill while 35 percent approve.” And that’s the New York Times survey.

Obama better hope Democratic senators don’t pay attention to the polls: “A new Rasmussen Reports national telephone survey finds that 41% of U.S. voters now hold a favorable opinion of Kagan but 47% view her unfavorably, up from 43% a week ago and 39% just after President Obama announced her nomination. … With Senate hearings on Kagan’s nomination set to begin June 28, 36% of voters now favor her confirmation, but 39% are opposed. One-out-of-four (25%) are undecided.” For Democrats wanting to show their independence from Obama, why not vote no?

You better keep an eye on Chris Christie: “Governor Christie on Tuesday told a borough teacher to find another job if she did not feel she was compensated enough as he defended his state budget cuts and promoted a plan to cap annual growth in property tax collections. … ‘Your union said that is the greatest assault on public education in the history of the state,’ Christie said. ‘That’s why the union has no credibility, stupid statements like that.’” He keeps that up and they’ll be a “Draft Christie” movement in 2012.

Obama better knock off the self-pity — Americans don’t like whiners: Daniel Halper on Obama’s comment that this is the hardest year and a half of any president: “It shows his self-absorption and utter lack of a sense of history. … Obama’s whining is puerile. One does hope it’s been the toughest year and a half he’s ever had. He is the president, and it’s a job that requires a bit of work. But to treat the previous presidents with so little respect is unbecoming.” And this was the candidate with a “superior temperament.”

The Democrats better lock away Joe Biden and Richard Blumenthal: “Vice President Joe Biden on Wednesday took an unexpected dig at Democratic Senate candidate Richard Blumenthal for misstating his military service record. … ‘I didn’t serve in Vietnam. I don’t want to make a Blumenthal mistake here,’ he said according to a pool report. ‘Our attorney general from Connecticut, God love him.’” I don’t necessarily see Obama sticking with Biden in 2012, do you?

What Were You Thinking, Dean Kagan?

Jennifer Rubin 05.25.2010 - 9:25 AM

Sen. Jeff Sessions took to the floor of the Senate to ask a wonderfully phrased question of Elena Kagan: “What were you thinking when you punished our men and women in uniform because you didn’t like what Congress and your president, President Clinton, did with regard to their policies on gays in the military?”

This and Kagan’s lack of judicial experience (and only minimal litigation experience) will and should be the focus of the confirmation hearings. Unless those concerns are put to rest, many senators will (and in my view should) vote against her nomination.

The filibuster is a different story, however. That involves a political calculation: will the alternative be any better? I suppose that depends in part on whether the new nomination and confirmation vote happens before or after November, when certainly there will be more Republicans on their way to the Senate. In any event, conservative senators may assess the other possible nominees, who may be more ideologically rigid and more capable, size up Kagan’s novice standing, and review the cases she will be recused from – and conclude she’s the worst alternative, except for all the others. In that event, a no vote and no filibuster would be the most prudent course of action.

Flotsam and Jetsam

Jennifer Rubin 05.23.2010 - 7:30 AM

The question is whether anyone has written a funnier, more devastating parody of liberal Jews than this. Definitely not!

The question is becoming not whether Israel will strike Iran, but when: “Israel, which initially tolerated President Obama’s effort to thwart Iranian nuclear ambitions through sanctions, has grown increasingly impatient in recent weeks with the approach and concerned that whatever is agreed to now at the U.N. Security Council will only allow Iran more time to advance its program.” When will mainstream Jewish groups voice impatience with Obama?

The question is when will the lies stop? Richard Blumenthal declared that he isn’t going to allow the race to be “about attacks on my character and service. … I have made mistakes. … I regret them. And I have taken responsibility.” No, he hasn’t. He has never apologized. He’s just sorry he got caught.

The question this election season for candidates, David Broder says, is whether you are with Obama or against him. “A liberal government is struggling to impose its agenda on an electorate increasingly responsive to an activist conservative movement operating inside the Republican Party. … [T]he Democrats are facing a populist backlash against the interventionist, expensive policies that Obama and others have pursued.”

The question is whether Obama “wasted” a Supreme Court nomination. According to a Fox poll, 33 percent don’t know whether Elena Kagan should be confirmed, which is exactly the right answer, given the paucity of information on her views and her lack of judicial track record.

The question is whether Obama should use this opportunity to abolish the job of director of national intelligence. John Noonan writes: “Unnecessary bureaucracy has a venomous effect on the national security establishment, whether it’s infantry or intelligence. The director of national intelligence, which has ballooned to a 1,500-man supporting office, was a top down solution to a bottom up problem.”

The question is whether there is any reason not to put Chris Christie on the shortlist for a place on the GOP ticket for 2012: “New Jersey Governor Chris Christie may have set a record for the speediest veto in American history on Thursday when he rejected an income tax surcharge passed by the Democratic legislature two minutes after it arrived on his desk. … Mr. Christie continues to stand out as a lone voice of economic sanity in Trenton and as a national fiscal leader.” I can’t think of one. (And by 2012, he’ll have had more years of executive experience — both in running the U.S. attorney’s office and as governor – than Obama did when he took office.)

The question is whether voters will laugh: Obama is going to run against George W. Bush in the 2010 election. Republicans are crossing their fingers that he be really serious about deploying this buck-passing, transparent gambit.

The question is now whether the Gray Lady will endorse him anyway. New York Times editor Clark Hoyt gives a somewhat candid assessment of the Times story on Richard Blumenthal’s serial lies, concluding: “In the end, through all the swirling sand the article has kicked up, a clear set of facts remains uncontested: On more than one occasion, Blumenthal said he had served in Vietnam when he had not. Did people the Times talked to have agendas? Sure. Did the Times independently verify the information? Yes, and that’s what counts.”

Flotsam and Jetsam

Jennifer Rubin 05.22.2010 - 7:00 AM

Whoever wins the Democratic Senate run-off is in for a tough time: “A new Rasmussen Reports telephone survey of Likely Voters in Arkansas, taken Wednesday night, shows [Republican John] Boozman, the winner of Tuesday’s state GOP Primary, with 66% support in a match-up with Senator Blanche Lincoln. The Democratic incumbent picks up just 28% of the vote.”

The New York Times digs up another instance in which Richard Blumenthal lied about his Vietnam service. (“In Vietnam we had to endure taunts and insults, and no one said, ‘Welcome home.’ I say welcome home.”)

Obama sees nothing wrong with Blumenthal’s serial lying about his Vietnam service. The Democrats, every one of them, it seems, have lost their moral compass (perhaps they’ve taken it out of the vault and jumped up and down, shattering it) – and their political horse sense.

Not exactly what the left had in mind: “A federal appeals court ruled on Friday that prisoners being held without trial in Afghanistan by the military have no right to challenge their imprisonment in American civilian courts. The decision, overturning a lower court ruling in the detainees’ favor, was a victory for the Obama administration’s efforts to hold terrorism suspects overseas for extended periods without judicial oversight.” So they want to close Guantanamo so they can hold detainees indefinitely in Bagram?

The spirit of Arlen Specter appears in the Senate race in Florida: “Charlie Crist offered his support today for Elena Kagan, saying he’s ‘impressed’ with her so far. … But pressed to explain why he would support Kagan but opposed Sonia Sotomayor while he was a member of the Republican party, Crist was at a loss for words.” He’s impressed with her treatment of military recruiters at Harvard?

Chris Christie’s star will continue to rise if he keeps this up: in his veto of a tax hike, he declared: “I told everybody that if this got sent here that I’d veto it, and I have … New Jersey does not have a tax problem, that we don’t have enough tax revenue. We have a spending and size of government problem and we need to start saying ‘no.’ And today is another one of those examples of saying ‘no.’”

Uh, I don’t think this helps Rand Paul any: “‘When does my honeymoon period start? I had a big victory,’ Paul told George Stephanopoulos on “Good Morning America” today. ‘I’ve just been trashed up and down and they have been saying things that are untrue. And when they say I’m for repealing the Civil Rights Act, it’s absolutely false. It’s never been my position and something that I basically just think is politics.’”

Actually CONTENTIONS contributor Pete Wehner and conservative columnist Michael Gerson are dissecting him very efficiently.

RE: Obama’s Immigration Gambit Unmasked

Jennifer Rubin 05.21.2010 - 8:50 AM

More evidence surfaces each day that the immigration push by Obama is a feint designed for political posturing but not intended to produce actual legislation. The Los Angeles Times reports:

Rahm Emanuel, White House chief of staff and longtime party strategist, has argued privately that it’s a bad time for Democrats to push an immigration bill, a potential land mine in the midst of a crucial midterm election year. … He has warned that pressing ahead with an immigration bill could jeopardize the chances of moderate and conservative Democratic candidates in the run-up to the midterms, according to people familiar with the matter.

Immigration activists know all this. They are also aware that as a recruiter for Democratic congressional candidates and while in the Clinton administration, Emanuel was a naysayer on immigration reform. They want him off the issue (but he’s chief of staff, fellas) and grouse that nothing is going to happen on the immigration front so long as he is around. But is it fair to lay the blame solely on Emanuel? Neither the Congress nor the president is moving with alacrity:

With time running out, the chances of an immigration overhaul this year are receding. No bill has yet been introduced in the Senate. Come June, the Senate will be enmeshed in the confirmation of Supreme Court nominee Elena Kagan.

Certainly, Obama has shown he is in no rush. At a Mexican heritage event earlier this month, Obama said he wanted to “begin work” on the issue this year — not complete a bill in that time frame. Yet, as a candidate in 2008, Obama promised to address immigration in his first year in office.

It seems then that Emanuel is not the stumbling block here — it’s the Democratic congressional leadership and Obama. They never intended to move forward on a bill; the grand speeches and noble-sounding promises were, like so much of what Obama does, entirely disingenuous. They all want an issue, not a solution.

You can see why state officials get fed up and resort to their own immigration legislation. Obama and the Democrats could make a real effort to pass a comprehensive bill that would, among other things, explicitly preempt the Arizona bill they like to rail against. But they won’t, because that would imperil their House and Senate members — well, imperil them more than they already are. It will be interesting to see how Obama explains in 2012 why he did absolutely nothing on an issue he supposedly cares so dearly about.

Specter Did Specter In

Jennifer Rubin 05.20.2010 - 8:44 AM

Margaret Carlson has two smart observations about the political demise of Arlen Specter. First, on top of his general toxicity to Democratic candidates, Obama helped do in Specter by nominating Elena Kagan, “which reminded people of that long-ago performance by Specter as he slammed Anita Hill during the Clarence Thomas hearings. Not too long ago, before Specter pledged Democrats his troth, Specter voted against the White House nomination of Kagan for solicitor general. Not surprisingly, he had a hard time finding takers for his reasons why she wasn’t qualified for that job — but should be confirmed to serve on the Supreme Court.”

In this we saw vintage Obama as well as classic Specter. Obama didn’t have a care in the world that his Kagan selection (which has gone over like a lead balloon with his base) would highlight Specter’s lack of core convictions. And Specter was at his typical squishiness in trying to disguise his true motives in these confirmation battles: ensuring his own re-election.

And then, unlike Campbell Brown, Snarlin’ Arlen went out in true form: “Specter did not go quietly into that good night, conceding in the shortest of speeches with no kind words for Sestak. He could have gone out gracefully but so few do — because losing is a little like dying for some.” It was one more reminder that Specter lacks both principles and class.

Politicians don’t often get their just desserts. The crooked ones often avoid prosecution. The ones who go back on campaign promises are rarely held accountable. In sleazy backroom deals, while supposedly representing “the people,” all too many secure comfy jobs on K Street that can benefit their own financial future at the expense of the taxpayers. But once in a while, a clarifying and fully satisfying moment comes along. This is one of them. And on this there is bipartisan agreement: Specter’s forced retirement is good for the Senate and good for the country.

Flotsam and Jetsam

Jennifer Rubin 05.19.2010 - 7:00 AM

Here’s one Jewish organization that’s not mute about Obama’s double standard for the Middle East: “The Zionist Organization of America (ZOA) has urged President Barack Obama to hold Palestinian Authority (PA) president Mahmoud Abbas accountable for a broadcast on PA TV on May 4 and May 7 which called Israelis thieves and advised them to return to Europe & Ethiopia. … Only four days following the second of the two broadcasts of this program by PA TV, President Barack Obama had a telephone conversation with the PA’s Abbas, in which he actually raised the issue of incitement, but not in reference to this or any other PA act of incitement.”

Here’s one more sign the Democrats are in trouble: “Registered voters who identify themselves as conservatives are significantly more enthusiastic about voting in this fall’s congressional elections than are liberals or moderates. Those who say they are ‘very’ conservative are the most enthusiastic of all, with substantially higher enthusiasm than those who say they are ‘very’ liberal.”

Here’s one deluded liberal: Greg Sargent writes of Richard Blumenthal that “whatever the truth, he insisted with a great deal of conviction that his lapses weren’t intentional. And the evidence so far suggests that in other settings, he didn’t intend to mislead. Perhaps most important, no Dems are cutting and running right now. They seem to have closed ranks behind him. Bottom line: It seems clear he’ll survive. But man, what a colossal train wreck. Don’t do it again, Dick.” So “whatever” the truth, it’s a “train wreck,” but everyone stand by their man!

Here’s one more reason entertainers should just “shut up and sing”: “British singer-songwriter Elvis Costello this week became the latest in a list of stars to cancel performances in Israel as a political protest. … The singer’s withdrawal follows similar moves by other high-profile musicians, including Santana and Gil Scott-Heron.”

Here’s one Democratic incumbent who looks safe: “No major Republican has opted to challenge her, and New York Senator Kirsten Gillibrand is comfortably ahead of the three lesser-known GOP hopefuls who’ve announced for this year’s special Senate election in New York.”

Here’s one wild goose chase: “White House seeking missing health care bounce.”

Here’s one more poll showing that Elena Kagan’s nomination isn’t a political winner for Obama: “Supreme Court nominee Elena Kagan spent the past week introducing herself to the Senate and to the nation, but U.S. voters remain evenly divided over whether she should be confirmed for the high court. A new Rasmussen Reports national telephone survey finds that 39% of voters believe Kagan should be confirmed by the Senate, while another 39% say she should not be confirmed.”

Harvard’s Double Standard on Gay Rights

Peter Wehner 05.17.2010 - 9:27 AM

On FOX News Sunday, former Speaker of the House Newt Gingrich, in talking about the nomination of Elena Kagan to the Supreme Court, makes this helpful comparison:

On the one hand, Harvard accepts money from Saudis. Saudi Arabia, by the way, executes homosexuals, Saudi Arabia represses women, Saudi Arabia does not allow Christians or Jews to practice their religion, but Saudi money is fine. The American military didn’t have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position. And if you read what they said at the time, it was consistently focused on the military, and I just think that at a time when we have two wars, that’s a very inappropriate behavior.

This is a very good point for GOP senators to press Ms. Kagan on during her confirmation hearings. Apparently, accepting the money from a repressive government where sodomy is punishable by death is hunky-dory, but the military, in carrying through on the Clinton administration’s policy, deserves to be singled out for condemnation. (Don’t Ask, Don’t Tell is a “moral injustice of the first order,” according to Kagan.) How exactly does one explain the different Indignation Meters at Harvard Law School?

For the record, it appears that $20 million (and perhaps considerably less) is enough to silence Harvard on the matter of human rights for gays. Here’s a report from 2005:

A Saudi prince has donated $20 million each to Harvard University and Georgetown University to advance Islamic studies and further understanding of the Muslim world. Prince Alwaleed bin Talal Alsaud — whom Forbes magazine ranks as the fifth wealthiest person in the world, with assets worth $23.7 billion — is the nephew of Saudi Arabia’s King Abdullah. “Bridging the understanding between East and West is important for peace and tolerance,” Alwaleed said in a statement released by Harvard. At Harvard, the money will fund four new senior staff professorships as well as an endowed chair in the name of the 48-year-old billionaire. Harvard will also use the funds to begin digitizing historically significant Islamic texts and materials, and make them available for research on the Internet. “We are very grateful to Prince Alwaleed for his generous gift to Harvard,” President Lawrence H. Summers said. The gift is considered one of the 25th largest in university history.

Of course, Harvard, ever open-minded, wanted to “bridge the understanding between East and West” in order to advance the cause of “tolerance.” So Harvard, for the right price, can summon tolerance even when it comes to governments’ executing people for sodomy. Yet it showed considerably less tolerance for the United States military on the matter of not allowing openly gay people to serve in the military.

How principled of Harvard.

All this is indicative of a twisted set of priorities by Harvard and worth exploring in some detail.

Refuse to Vote Until Kagan Shows Her Cards

Jennifer Rubin 05.17.2010 - 8:15 AM

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

Has Kagan Crossed the Line?

Jennifer Rubin 05.14.2010 - 8:28 AM

Arlen Specter says (I know, take it with a grain of salt, but the comments have not yet been challenged) that Elena Kagan opined on Citizens United in her private meeting with him. Oh really? Specter reports: “She said she felt that the court was not sufficiently deferential to Congress.” Well, if she’s already made up her mind on an issue of constitutional interpretation and thinks the Court got it wrong, let her explain herself to the full Senate. And what about on Ricci, the New Haven firefighter case for which she prepped but handed off to her deputy? Did the Court get that one right?

According to Specter, Kagan “reiterated her criticism that the Senate confirmation process yields little information about Supreme Court nominees and that one justice was less than forthcoming during his or her confirmation hearing.” Fine — let’s get ready for a full download of her views, reasoning, and preformed decisions on the matters likely to come before her. It’s only fair, after all, since she has no paper trail and never issued an opinion of her own (legal or otherwise, come to think of it) for her to give a detailed discourse on her views. And if she refuses? Well then senators — both liberals who are taking a gamble that she is “with them” and conservatives suspicious she’s a dyed-in-the-wool activist — will have to decide if they can confirm a justice for a lifetime appointment knowing nothing relevant about how she would perform her duties.

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