So by all accounts, President Obama will announce this morning that he is nominating Solicitor General Elena Kagan to the Supreme Court.
It occurs to me it might be both interesting and profitable to make book on which Republican Senator will offer the most absurdly unfair criticism of her nomination. (I would probably back John McCain — on the principle that necessity is the mother of invention, and he seems to perceive it as absolutely necessary to feed right-wing Republicans as much red meat as possible before the primary — unless he is the odds-on favorite, in which case I might flirt with Orrin Hatch.) Please note that only original criticisms count. No credit will be given for simply repeating other people’s original material, such as University of Colorado law professor Paul Campos’ comparison of Kagan to Harriet Miers, who, for many years to come, will continue to walk away with the title of the All-Time Worst Nominee to the Supreme Court.
Talking of absurd, the most absurd comment I have read so far in a serious news outlet on the presumptive nomination came from a NYT article:
Ms. Kagan was also confirmed by the Senate just last year, albeit with 31 no votes, making it harder for Republicans who voted for her in 2009 to vote against her in 2010.
Grown men with an IQ exceeding their age are seriously postulating in print that it is reasonable to hold Senate Republicans to a standard of consistency? At this point in the ongoing Republican Clown Show?
And journalists who the NYT actually pays with real money seriously believe that if you thought someone was qualified to be Solicitor General, then you have no choice but to pronounce them worthy to sit on the Supreme Court?
I also wonder if presumptive runner-up federal appeals court judge Merrick Garland will find much consolation in this analysis:
Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president. Senator Orrin G. Hatch of Utah, a Republican member of the Judiciary Committee, privately made clear to the president that he considered Judge Garland a good choice, according to people briefed on their conversations.
But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.
And for all of you who are into composition-of-the-Supreme-Court trivia:
If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish. It also would mean that every member of the court had studied law at Harvard or Yale.
I think that’s just a back-door way of giving George Bush credit for passing up two opportunities to put a Liberty University School of Law graduate on the bench.
*** Update, 11:23 a.m. ***
I guess I’m sadly out of touch with the times.
In addition to gleefully pondering the prospect of making book on who would offer the most absurdly unfair criticism of Kagan’s nomination, I should also have been thinking of the the most absurdly stupid criticism.
I think Ed Whelan — President of the Ethics and Public Policy Center, and a former law clerk to Antonin Scalia — has just taken a commanding early lead by attacking her for not learning to drive until her late 20s. According to Whelan, that should count as a disqualification because it “nicely captures Elena Kagan’s remoteness from the lives of most Americans”. Good grief!
But it’s still early days. I have no doubt that Whelan will have to do considerably better than this if he wants to be a contender in the stretch.