Democrats could learn a few things from Republicans. If, for example, Democrats had closed ranks and opposed the Iraq War à la Republicans on health care, maybe that ugliness wouldn’t still be dragging to a close. But what I have in mind now has to do with the parties’ approaches to exerting influence over the Supreme Court.
The Supreme Court is technically nonpartisan, but any illusions of neutrality were dispelled when the Supreme Court voted 5-4 to halt the 2000 recount in Florida, effectively appointing George W. Bush to the presidency. Republicans have shown a level of shrewdness in maintaining ideological influence over the highest court in the judicial branch — even when they had to go against their party’s leader.
I’m referring to George W. Bush’s nomination of Harriet Miers to the Supreme Court in 2005. Miers was widely considered unqualified for the job, but what led Republicans to oppose Bush’s nominee were not her qualifications, but concerns that she was not conservative enough. Bush placated Senate Republicans by withdrawing Miers’ nomination and putting forward Samuel Alito, who had a strong record as a conservative judge.
Senate Democrats should take a leaf from the Republicans’ book and refuse to confirm Elena Kagan, President Obama’s nominee to the Supreme Court. Kagan would replace the retiring justice, John Paul Stevens, who is considered a member of the court’s liberal wing.
The problem with Kagan — who has served as the White House’s solicitor general, dean of Harvard Law School, and as an advisor to former President Clinton — is that little to nothing is known about her political opinions on the important constitutional issues of our time, including the power of the executive branch and her stance on civil liberties. Because she has never been a judge, there are no judicial decisions to review, and Kagan has written relatively little on her political views in outlets like legal journals.
In an attempt to fill that void of information, the media has focused on her time as dean of Harvard, and her decision not to allow military recruiters at a campus career fair. Kagan and the Harvard administration felt that the military’s “don’t ask, don’t tell” policy violated the university’s stance to bar employers with discriminatory policies from recruiting students.
While this act may warm liberal hearts, there are other anecdotes that suggest an entirely different side to Kagan. For example, in her confirmation hearings for the position of solicitor general, she implied support of policies of indefinite detention without trial in the war on terror. Likewise, in 1998, Kagan advised President Clinton not to alter the ridiculous disparity in sentencing crimes related to cocaine and crack cocaine. At the time, crack-related crimes were punished up to 100 times more strictly than cocaine crimes, and, as a result, a disproportionate amount of African-Americans were incarcerated. Kagan’s memo bluntly advised Clinton to put politics first in order to appear tough on crime.
The importance of the Supreme Court’s membership cannot be understated. History stresses Supreme Court decisions as landmarks in the course of our democracy, for good or ill. The decision made in 1973 that held abortion to be a right remains the most controversial ruling in recent history. We in Santa Cruz’s leftist bubble would do well to remember that 37 years later, there are still numerous powerful and well-funded organizations utterly devoted to overthrowing that decision.
Just this year, the Supreme Court made the devastating conclusion that corporations can make unlimited donations in elections — again on a narrow 5-4 vote. Considering the paramount importance of the Supreme Court, and the urgency on the part of liberals to move the country back to the center in the wake of the most radical right-wing presidency in our nation’s history, why has Obama nominated someone whose views are so murky?
The Supreme Court is in desperate need of strong liberals, especially considering that this appointment will replace Stevens, a liberal, maintaining the court’s conservative majority. As it stands, the mystery that is Kagan could potentially move the court further to the right. The Democratic Party is widely forecasted to lose seats in Congress this November. It is precisely now, at the height of their power, and with Republican power at its lowest, that liberals ought to take the opportunity to appoint the strongest possible candidate to the Supreme Court.
