Advise and Consent

Posted May 11, 2010, at 6:26 p.m.

President Barack Obama’s nomination of Elena Kagan to serve on the U.S. Supreme Court has, as expected, put the liberal and conservative spin machines into overdrive. Both are flummoxed by her relative lack of judicial history.

Whether or not Ms. Kagan is qualified to serve on the high court, it is not surprising that the president chose someone without a long paper trail. At a time when lawmakers from both parties comb through nominees’ rulings and writings looking for evidence that they are too activist or too pro-union or too pro-life, there is an incentive to put forward nominees with thin records.

This is not a system for ensuring the best people are found for these jobs, especially for the Supreme Court where justices can serve for more than a generation.

It is too early to say whether Ms. Kagan, who now is the U.S. solicitor general, but has not served as a judge, is qualified to serve on the court. Likewise, it is also too early to put out press releases enumerating the reasons she isn’t.

A press release from Sen. Olympia Snowe treads the reasoned middle ground. “Solicitor General Elena Kagan appears to present strong intellectual credentials and, as the process moves forward, I look forward to learning more about her experience and expertise,” the senator said.

“I will apply to this nominee the same standard of review that I have in the past — that any Supreme Court nominee should bring a balanced approach to cases, possess a strong intellect and suitable judicial temperament, and follow a disciplined judicial methodology in reaching decisions,” she added. “Justices on the court sit for life, so the Senate must exercise its constitutional duty thoughtfully, and give careful and thorough consideration to Elena Kagan, as it should to every nominee.”

A Senate Judiciary Committee hearing is supposed to be where lawmakers — and the public — will learn about Ms. Kagan’s qualifications and her judicial philosophy. Instead, it is likely to become a forum for political theater where senators supportive of her nomination will throw out softball questions, and those who oppose her will go the entrapment route.

While senators have a constitutional responsibility to vet presidential nominees, this notion of “advise and consent” has been taken to extremes. The men who wrote the Constitution probably didn’t envision litmus tests — especially ones involving abortion, homosexuality or immigration. Instead, advise and consent meant that unless the president’s choice to fill a post was seriously deficient they would “consent” to that choice.

As we wrote in 2006, President George W. Bush’s second choice for a vacancy on the Supreme Court — Samuel Alito — was surely conservative, which should have been expected given the president’s stance. But since none of his opinions was “reckless or even far-reaching,” in the words of one liberal pundit, Judge Alito deserved confirmation.

In other words, the time for objections was during the 2004 campaign or, more recently, the 2008 election. Once a president is elected, advise and consent becomes the operative policy, not dig and pontificate.

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