Republicans Come Out of Hiding

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times

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3 Responses

  1. Frank Pasquale says:

    I’m just surprised there is any “straight reporting” on this outlandish claim of McConnell’s. His strategy is just to chew up the clock until the midterms. The headline should be “McConnell comes up with unconvincing rationale to try to delay Kagan’s appointment,” not “McConnell says Kagan is biased.”

  2. Ken Rhodes says:

    Three days ago, in the thread titled “McConnell Doesn’t Rule Out a Kagan Filibuster,” I wrote this:

    “This is purely Politics 101. McConnell raises the spectre of the dreaded filibuster, sowing the seeds of doubt in the minds of White House staffers who are supposed to walk Kagan’s nomination through with a minimum of fuss and bother. In return for subsequently promising not to do what he was never going to do anyway, McConnell extracts some concessions from the White House on one or more totally unrelated issues, which were his real target all along.”

    Bryan Gividen made an even-handed reply which I truly wanted to believe:

    “Ken, I think you attach too much deviousness to the Senator. …etc.”

    Sadly, it increasingly seems that my cynicism was well-placed.

  3. “and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests.”

    OTOH, people who habitually say that need to remember that a lawyer who is willing to zealously advocate ANY position, as long as the check clears, is something of a sociopath. One hopes there comes a position where a lawyer will abandon the client.

    Not saying it applies in this case, but as a general observation.

    And, of course, as a policy advisor, the excuse is even less comprehensive. As a policy advisor for a client she chose to work for, having in advance some idea of the client’s aims, it’s virtually non-existent.