Tag: confirmation hearings

Labor Nominee Exemplifies All That Is Bad with Government

Thomas Perez, the assistant attorney general for civil rights who personifies both the Peter Principle and this administration’s flouting of the rule of law, is due this week for a vote in the Senate Health, Education, Labor, and Pensions Committee on his nomination to be Labor Secretary. If senators who understand how destructive he is don’t do more than simply vote against him, they will have missed a key opportunity not just to stop a bad nominee, but to score easy political points too.

Quin Hilyer provides a useful recap of Perez’s nefarious dealings:

  • Interference with the Supreme Court case of Magner v. Gallagher, getting the City of St. Paul to dismiss its appeal to prevent what would’ve been a sharp (and probably unanimous) rebuke to the federal government regarding its use of “disparate impact” racial theories in housing policy, to the detriment of minorities and poor people everywhere;
  • Refusal to comply with subpoenas from the U.S. Commission on Civil Rights;
  • Dismissal of the Justice Department’s already-won prosecution of the Black Panthers for voter intimidation during the 2008 election;
  • Repeatedly stating and running a department dedicated to the proposition that voting rights and other civil rights law don’t protect white people;
  • Willfully misleading and lying to Congress under oath several times;
  • Racial abuse of the New York fire department, to the detriment of public safety and qualified minority applicants;
  • Hiring for “career” (non-political appointee) slots only attorneys who have demonstrable left-wing credentials—making Alberto Gonzales’s politicized-hiring foibles look like the model of civil service administration;
  • Trampling on religious liberties to the point that the Supreme Court unanimously rejected his arguments in Hosanna-Tabor v. EEOC regarding the “ministerial exception” to employment laws;
  • Conducting government business from a personal email account as much as 1,200 times (!) and now refusing to comply with congressional subpoenas to release those emails; and
  • Unrelated to him personally, being nominated to lead a cabinet department whose jurisdiction overlaps with an independent agency, the National Labor Relations Board, that was improperly constituted via illegal recess appointments and has continued to issue rulings even after the government lost its case unanimously at the D.C. Circuit.

About the only thing that The Talented Mr. Perez has going for him is that his performance at his confirmation hearing wasn’t the complete disaster that Defense Secretary Chuck Hagel’s was at his (a low bar). In short, if there is ever a reason not to simply defer to the president in his choice of cabinet members or to make political hay rather than simply have a quiet vote, this is it. 

Republicans Go From Daddy Party to Baby Party

During the Cold War Republicans presented themselves as the Daddy Party, prepared to defend America in a dangerous world. They won an enduring electoral advantage on international issues. 

But the GOP lost that advantage with the end of the Cold War. The world is still dangerous, but not so much to America. Terrorism is a monstrous crime that frightens, but it does not pose an existential threat. And the United States far outranges any other power or group of powers militarily. 

The Republican Party has had trouble adjusting to the new world. Losing its automatic advantage on international issues has shifted the political battle further to economic and domestic issues. George W. Bush’s disastrous tenure further soured Americans on the GOP. Mitt Romney spent most of the campaign doing the Maori Haka in an unsuccessful attempt to portray Barack Obama as weak in foreign policy.  

The dishonest and immature campaign against secretary of defense nominee Chuck Hagel demonstrates that the Daddy Party has turned into the Baby Party. There are important defense issues that deserve serious debate. But the Republicans are not interested in conducting one. 

The vicious claims of anti-Semitism from some critics were risible, an attempt to foreclose discussion.  Much of the opposition was driven by politics rather than substance:  war-hawks like Lindsey Graham (R-SC) used Hagel’s confirmation hearing to posture rather than discuss serious defense issues. John McCain (R-AZ) spent most of his time attempting to vindicate his awful judgment in having supported the Iraq war, which left thousands of Americans dead and tens of thousands wounded, created carnage in Iraq, and empowered Iran. 

Even worse, though, Sen. McCain admitted that much of the angry opposition, which led Republicans to block a vote on Hagel’s nomination, was personal. Republicans were irritated that Hagel had the temerity to criticize President Bush, who did so much to ruin America’s fiscal future and strategic position. 

Reported the Huffington Post:

There’s a lot of ill will towards Senator Hagel because when he was a Republican, he attacked President Bush mercilessly, at one point said he was the worst president since Herbert Hoover, said the surge was the worst blunder since the Vietnam War, which is nonsense, and was anti his own party and people,” McCain said during a Thursday interview with Fox News. “You can disagree, but if you’re disagreeable, people don’t forget that.” 

At least McCain agreed that the filibuster would end, probably on February 26, when the next vote on Hagel’s nomination is scheduled. But the GOP has wrecked what little remained of its foreign policy reputation. The world may be in flames, but Republicans don’t care. They are upset that Chuck Hagel had the courage to break with neoconservative orthodoxy when it mattered. While he might not be as transformational a defense secretary as some of his supporters hope, he can be expected to bring a fresh and thoughtful perspective to a foreign policy which is largely brain dead. Most important, it would be good to have a Pentagon chief who understands why war truly should be a last resort.

Senators (Finally) Press Kagan about ObamaCare

Back in May, I suggested:

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides…

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.

Committee members didn’t ask her those questions during the hearings, as The Wall Street Journal explains. Fortunately, a letter to Kagan from all seven Republicans on the committee has (exhaustively) remedied that oversight.

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

Will Specter Vote Against Kagan?

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall

Kagan May Well Become “The Liberal Scalia”

More highlights from Day 2 of the Kagan confirmation hearings:

•  In addition to backing away from President Obama’s empathy standard, Elena Kagan, under questioning by Senator Grassley, backs away from her “judicial hero” Aharon Barak, saying that she does not share his judicial philosophy, which involves judges making policy decisions and affirmatively shaping society.  This is an important concession.  Grassley also elicits the statement that only the president and Congress should worry about American influence in the world.

•  The wily Arlen Specter, in his last Supreme Court hearing (unless Justice Ginsburg retires over the summer), treats his questioning as a prosecutor would.  Technical questions and cutting off responses when Kagan begins to expound on the current state of the law, when what he really wants to know is what she thinks about the law.  Unfortunately, Specter accepts Kagan’s statements that she respects Congress but does not press her right when the next question would demand an actual opinion on Citizens United or on Morrison (an important case in which the Court struck down the Violence Against Women Act as beyond Congress’s powers to regulate interstate commerce).  Kagan admits that Citizens United was a “jolt to the system” because states had relied on the pre-existing campaign finance regime.  Unfortunately, this is again an empirical statement rather than a normative one.

•  Kagan does express a firm opinion in favor of televising Supreme Court proceedings (this is one of Specter’s bugaboos).  “I guess I’ll have to have my hair done more often,” she says.

•  Lindsey Graham is definitely worth the price of admission.  First he prompts Kagan to admit that “my political views are generally progressive” after she declined to characterize herself in anyway in response to previous senators’ queries.  Then he gets her to endorse her classmate Miguel Estrada for the Supreme Court (which may be of interest to General Petraeus, who testified before another Senate committee today).  Finally, in questioning regarding the Christmas Day bomber, he provokes an ethnic love-in after his question about where Kagan was on Christmas Day elicits the response, “well, like all Jews, I was probably at a Chinese restaurant.”  As he did with Sotomayor, Graham makes clear that he is likely to disagree with many of Kagan’s judicial decisions, but will vote for her regardless.

•  John Cornyn is the first senator to push the size and scope of government as a major line of questioning.  He asks her one of my pet questions: What limits are there on government?”  Kagan replies by reciting the Commerce Clause standards set forth in existing precedent, that Congress cannot touch activity that is not economic or that is left traditionally to state power. Well, that’s progress, but of course it raises the question of whether forcing someone to buy health insurance involves regulating economic activity and whether health care regulation is a traditional state responsibility.

•  Tom Coburn picks up where Cornyn left off, proposing a hypothetical bill requiring everyone to eat three fruits and three vegetables per day.  Kagan considers that a “dumb law” but says that “courts would be wrong to strike down laws simply because they are senseless.”  Well, ok, but is that particular senseless law unconstitutional?  Kagan seems pained (in real psychic discomfort) but Coburn lets her off the hook in reading from the Federalist Papers—a nice edition that should make for a good picture in the Oklahoma papers—and talking about the explosive growth of government.  Kagan shrugs off this discursion by citing Marbury v. Madison—“the role of the courts is to say what the law is”—and concluding that deficits aren’t a problem courts can resolve, at which point Coburn’s time runs out.  We will revisit this issue.

In short, Kagan is without doubt smarter, wittier, and more collegial than Sonia Sotomayor.  Unfortunately, that means she is likely to be more dangerous, a true “liberal Scalia.”  We now know that two of the catchphrases from these hearings will be that “I’m not going to grade cases”—why not?—and that everything the Court has ever decided is “well-settled law.”  In my mind, Kagan has not yet met the burden of persuasion regarding constitutional limits on government, which is my focus at these hearings.  I would look for Senators Sessions, Cornyn, and Coburn to hit this issue hard on the next go-around.

CP at Townhall

Kagan the Tight-Lipped, Fair-Weather Originalist

Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:

  • Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio.  I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy.  Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best.  And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0).  There are policy differences and legal advocacy, and then there’s the rule of law.
  • Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing.  In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”  Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.”  She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong.  Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
  • In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders.  This line of analysis is completely wrong.  It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
  •  Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law.  This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees.  She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
  • At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.

The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.

CP at Townhall

FLASH: Liberal White House Nominates Liberal Judge!

From the first round of Clinton Library documents regarding Elena Kagan’s White House service, we can now all be shocked – shocked! – that President Obama’s Supreme Court nominee is a liberal.  It’s a mystery why the punditocracy thought someone who despaired at Ronald Reagan’s election, staffed the Michael Dukakis campaign, clerked for Thurgood Marshall, and advised Bill Clinton would be anything else.  But this is what passes for news in Washington these days.

We already knew that the solicitor general was a genial but cautious careerist, rarely expressing her own opinions but forever strategizing over the next rung on the ladder that would take her to her high school dream of sitting on the Supreme Court.  And we knew that she was a moderate legal academic – meaning she sits comfortably to the left of the country as a whole.  Well, now we know that Kagan is a technocrat who is for abortion rights, affirmative action, and campaign finance regulations, but against guns.

Some conservatives may see this as an “a-ha” moment, and rabid progressives may be breathing a sigh of relief.  But really these so-called revelations are not going to change the story, either in terms of the final confirmation vote or in the court of public opinion.

What the media should be asking, and what the American people deserve to know, is how Kagan views the Constitution – especially what limits it places on an out-of-control federal government.  In a prophetic 1995 book review, the nominee expressed frustration at the “vapid and hollow charade” that the confirmation process had become and demanded that both senators and judicial nominees engage in more substantive discussions.  Let’s see if the Kagan hearings meet that Kagan standard.