What's Next After Kagan's Confirmation?

Written by Andrew Kreig
Published on October 24, 2010

The Senate confirmed Elena Kagan's for the Supreme Court by a 63-37 margin Aug. 5, thus overcoming opposition by all but five Senate Republicans. The Justice Integrity Project announced opposition June 28. Our goals didn't rely on vote results. Instead, we wanted to shift debate away from the party-line hokum and horse-race punditry.

Here's our prediction: With the Kagan appointment, we're now seeing the yet another well-credentialed careerist elevated to a lifetime job. She'll likely help shift constitutional power further toward an increasingly unaccountable Executive Branch that's vastly different than the Framers envisioned even as amplified by post-Civil War amendments for a slave-free society. The Constitution-makers emphasized the duties of the Senate and House, and the vital congressional role in checks and balances. 

Kagan, 50, a close friend of President Obama and a former top aide to President Clinton, suggests through her writings and other actions that she's comfortable with these dangerous long-term trends.

Instead of focusing on that growing institutional problem, Senate Republicans trivialized their role by partisan, short-term talking points to stir their base. The Democrats similarly avoided serious scrutiny. Among Democrats, only Nebraska's Ben Nelson dared to violate party-line voting and even then it was for banal reasons, such as the nominee's relatively low popularity in his state.

Salon columnist Glenn Greenwald noted in “The Alleged Political Benefits of Moderation” that both in Senate voting and in opinion polling the public preferred Obama’s first nominee, Sonia Sotomayor, with her more-clear cut judicial record documenting a philosophy.

We can all do better. Our 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 typically takes an extremely timid approach even to preliminary oversight. The recent cases tend to stem from a clear-cut conviction for a largely private misdeed not scrutiny for a pattern of potentially corrupt dealings that could have far more serious consequences for the public.

We plan to shine a light on appalling situations, with hope that you as readers will share our concerns. The Framers, in their wisdom, avoided a statute of limitations on impeachment actions. So should the court of public opinion.

Early in my career as a newspaper reporter, I twice published stories that cost federal judges their jobs, although neither was a presidential appointee with a lifetime post. But each was highly 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 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 (there were two) and I were like an office's daily cleaning crew, occasionally creating a temporary disruption in 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've researched and want to expose. Instead, my point is that oversight procedures need to be aggressive on a more routine basis.

In Kagan's situation, a few on both the right and left have suggested that her expansionist view of presidential power to fight terror threats may stem from a supposedly 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 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 involves a variety of 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'll now share that I phoned the Yale University historian Donald Kagan last spring at home.

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 dean of Harvard Law School, and that she was no relation to him.

Here's 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 with information I'd dug up from newspaper clips about a dispute involving him in private practice years two decades previously. "Is that all you've got?!" he responded, with what I recall as a smile.

These days the legal and societal problems are vastly greater, and so there's 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."

At the swearing-in to the bar of a friend two decades ago, I heard the presiding federal judge encourage the new lawyers to practice their profession vigorously and without undue deference to the court.

I don't remember the judge's name, but do recall what he said: "A judge," his honor humbly told the assemblage, "is just a lawyer who knows a politician well enough to get nominated."

Judge Newman, a former top aide to Connecticut's Sen. Abe Ribicoff, has gone on to renown as one of the nation's most respected judges, and indeed as a giant in jurisprudence.

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