Midst all the wailing and gnashing of teeth by both the right and the left over the President’s nomination of Elena Kagan, a few of us are sitting down and calmly assessing the choice. I have been an attorney, working in the law for 40 years now and have appeared before hundreds of judges in scores of courts. Here is my take on this nomination:
A. When it comes to monumental, historic cases, the Supreme Court is presently a four-to-four affair, with an arguably malleable fifth vote from Kennedy.
B. The seat that is open is one of the four liberal seats. Thus, the best any appointment can provide is to maintain the four-to-four present make up of the Court.
C. Therefore, putting an aggressive, outspoken liberal on the Court (assuming he/she could even get through the Senate) gains absolutely nothing as far as the vote count goes. So what could be gained by a given appointment if any appointment only brings the liberal count to four?
D. The answer is an appointment of someone who is a reliable left-leaning jurist, and is more likely than other candidates to sway the fifth vote to the righteous path. This is essential. The appointment of a fiery liberal doesn’t improve the count, and well might push vote five the wrong way. Kagan is renowned as a person who can broker commendable resolution of difficult disputes.
E. As an ancillary matter, ginning up a big ugly fight over a controversial appointee will be politically bad for the Dems in the upcoming elections. Kagan is predicted to sail through with little controversy in her wake.
Just sayin”
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