Applying The Kagan Standard

Applying The Kagan Standard

Some years ago, a legal scholar wrote that the Senate should engage judicial nominees in a meaningful discussion of legal issues. That would create a confirmation process that allows senators to properly evaluate nominees while it appropriately educates the public.

That was in 1995 in reviewing Stephen L. Carter???s book The Confirmation Mess, when Elena Kagan laid out what I call the Kagan Standard.  It has two elements:  First, it mandates an examination of, ???the nominee???s broad judicial philosophy??? and views ???on particular constitutional issues.???  If the nominee merely repeats precedent and uses the confirmation process as the functional equivalent of a constitutional law oral examination, then this should be grounds for senators to demand an extended debate and consideration.
The second element of the Kagan Standard is that senators should demand answers to questions on ???how theory works in practice by evoking a nominee???s comments on particular issues??? privacy rights, free speech, race and gender discrimination and so forth???that the court regularly faces.???

Clearly, senators should keep her to her own standard. With Elena Kagan now nominated for a seat on the Supreme Court, senators should demand answers to the nominee???s views on the right to life, the 2nd Amendment ( See page 11.) and the right of individuals to pray in public buildings.  As Kagan herself argued in her ???95 review, the need for this inquiry is particularly great for nominees who do not have extensive records to judge.

Senators and the American people have the right to know how Elena Kagan would interpret the law before she is confirmed to a lifetime appointment.  Anything less would amount to confirmation malpractice by the United States Senate.

As the Senate Judiciary Committee prepares for hearings before the July 4 recess and a potential final Senate vote before the August recess, senators need to demand a comprehensive review of Kagan???s writings as an official of the Clinton Administration.

Clearly some of those writings will be the subject of the claim of executive privilege by the Obama Administration. These are old documents and some conservatives would argue that they are all non-privileged.  The Obama Administration shouldn???t be allowed to assert executive privilege as a pretext to keep secret Kagan???s views on important issues.

Bipartisan Earmark Transparency

Senators Tom Coburn (R.-Okla.), John McCain (R.-Ariz.), Russ Feingold (D.-Wis.) and Kirsten Gillebrand (D.-N.Y.) have introduced legislation to create a searchable database of all congressional earmark requests.  The bill (S. 3335), ???The Earmark Transparency Act of 2010??? would implement President Obama???s call in his State of the Union address this year for Congress to create a database of ???all earmark requests on a single Web site before there???s a vote, so that the American people can see how their money is being spent.???

The bill, according to a Coburn press release, would, ???provide details on projects including the amount of the initial request, amount approved by the committee, amount approved in final legislation, sponsor name, sponsor state or district, project name, and other relevant information.???  Transparency in government is a good thing and conservatives applaud ideas that allow the American people to see how their hard-earned tax dollars are spent.

Kerry-Lieberman Global-Warming??? Solution??? a Non-starter

Last week, Senators John Kerry (D.-Mass.) and Joseph Lieberman (I.-Conn.) unveiled their purported ???solution??? to global warming.  Their 987-page bill???at least they kept it under 1,000???which includes a cap-and-trade system and a gas tax, appears to be a non-starter in the Senate.  Even before their plan was released, Majority Leader Harry Reid (D.-Nev.) was trying to pivot to a ???smaller energy bill.???  The approach Reid believes can garner bipartisan votes is a so-called Renewable Electricity Standard (RES).

This fancy name tries to obscure the fact that the government would mandate the use of expensive energy sources.  A recent Heritage Foundation analysis of an RES revealed debilitating economic impacts.  It would cost nearly 1.2 million less jobs by 2020, and $5.2 trillion in wealth destroyed by 2035.  Wind may blow freely, but harnessing its power and transmitting it into our homes and factories is very expensive.  Americans remember the energy crisis that precipitated the 2008 financial crisis and they have no tolerance for such a misguided scheme.

Sen. Reid believes there are ???a couple of Republicans who would help??? pass a bill that would raise electricity prices.  He???s likely to find less support among Americans who are struggling to pay their mortgages and find jobs.