To a federalist minded person, the nomination of Elena Kagan to replace Justice John Paul Stevens on the Supreme Court is the stuff of which nightmares are made. Not only is she a progressive, she is a progressive with absolutely no judicial experience. To any person with no judicial experience, there is little if any inclination to respect judicial precedent. The overriding factor in making a decision is more prone to be based on what the person thinks the law should be-not what is actually stated and allowed (or not) in the Constitution. This can be a problem with a conservative jurist as well, but at least most conservatives tend to be originalists, who do not so much "interpret" the words of the constitution as though that document were some arcane work filled with hidden mystical symbols that must needs be decoded, but as a work that literally means what it says-if it says anything at all on the matter before the court. Progressives are a little bit more-shall we say, "creative", when it comes to what is or is not in the Constitution and the Bill of Rights. Take a progressive-especially a progressive lawyer-with no judicial experience, and you have the possibility of all kinds of legal mischief, possibly rising to the level of outright misconduct. Respect for judicial precedent is dependent on the failure or success of the last case argued before any given court. A judge merely applies the law-well, in theory. Granted, many decisions made by seasoned jurists can also be questionable and flawed. They too can be influenced by sentiment. They are only human. But a lawyer is-well, I guess they're human too, but that's beside the point.
Lawyers are gamers. They are in it to win it. Judges are referees. If a referee calls a foul, he's right most of the time, whereas the offending player will usually make the attempt to deny the foul, or blame the opposing player. This will last all of two seconds, and the decision of the referee will usually stand. Put a player in that position of referee, and it doesn't matter how well versed he is in the rules of the game. He just can't be objective. It's not in his nature. Moreover, it is just not in his training. Being a referee takes a whole new set of skill sets. In its own way, it takes experience, and a practice and training that is in its own every bit as grueling as that required to be a player.
This nomination might well be Obama's Harriet Myers moment. Whereas a surprising number of conservative politicians, activists, and pundits excoriated George W. Bush for the appointment of Myers, due to her seeming lack of qualifications, Kagan is likewise coming under fire from progressives for much the same reason. In her case, though, there is a very strong feeling that she might not be really all that progressive. Some have called into question her hiring practices both at Harvard and as Obams's recent Solicitor General. In both cases, her record of minority hiring was lackluster at best. In neither instance did she hire any qualified African Americans. Also, according to this article on the Huffington Post, Kagan might not share the judicial philosophy of late Justice Thurgood Marshall (for whom she worked as a clerk) that Obama and others assumes she does.
She has also made the statement that there is no constitutional right to gay marriage. Which, duh-there's no constitutional right to marriage of any type-period. The closest one can come to an inference of a perceived right to gay marriage is under the Equal Protection clause. This however does not negate her statement as to the validity of a constitutional right or lack thereof to gay marriage, nor does her statement intimate that she would decide against such a constitutional right based on Equal Protection. She is, of course, playing word games, but the progressive wing of the Democratic Party, and other progressives, are not concerned about that. They want, they demand, open advocacy. Just one more example of the overt politicization of the judicial process.
Then, finally, we get to the meat and potatoes of the reason for this appointment-her support for the "unitary executive", that poisonous mushroom that has corrupted the office of the presidency since at least the days of Richard Nixon, and has infected all holders of the office since that time, Republicans and Democrats alike. Obama is no exception. Power corrupts, but if you don't have enough, it leaves a deep, gnawing hunger that could lead to a soul-devouring binge should it ever become available.
This then is not a mere sign of a thoughtful, drawn out judicial process. This appointment is an indication of Barak Obama's appetite for power coming to the fore. He's like a kid at MacDonalds looking at all the pictures and thinking he wants one of everything on the menu, but he wants to make damn sure he gets the one that comes with the toys first and foremost.
Then, as the Crank Files points out, there might be another reason. As Solicitor General, Kagan argued before the Court in an attempt to uphold the McCain-Feingold Campaign Finance Reform Law. She failed, and of course this led to Obama's petulant dressing down of the Court during the last State of The Union. The appointment of Kagan might be a way of sticking a thumb in the collective eye of the conservative wing of the court to whom his remarks were truly aimed.
All told, Kagan might not be the worse pick Obama could come up with from a conservative perspective. Some progressives at least consider her a moderate when it comes to such things as immigration law. By and large, however, it's pretty obvious that whoever Obama picks is going to be a progressive, and will probably support the vast majority of his agenda-except for those things that support a unitary executive, perhaps. Otherwise, I don't know that there's anything worth fighting about here, from a conservative standpoint.
