Commentary: Playing politics with Kagan's confirmation

Elena Kagan answers questions.
Elena Kagan answers questions. Rafael Suanes/MCT

Today is my wedding anniversary, and that makes me think of the late Justice William Brennan.

It was in July 1990, while returning to the Half Moon Bay, Calif., bed-and-breakfast where my husband and I were celebrating our first anniversary, that I learned Brennan was retiring from the Supreme Court.

No ubiquitous cellphones or laptops in those ancient days. I was covering the court for the Chicago Tribune then, but I learned that a legend was stepping down by seeing the headline in a newspaper box on the street.

President George H.W. Bush quickly named David Souter, an obscure federal appellate judge from New Hampshire, as the first of two nominees it turned out he'd get for the court.

Souter faced the all-too-familiar skepticism from the culture warriors who wanted to pin him down on one side or the other of the abortion debate. Democratic Sen. Howell Heflin of Alabama called him a "stealth" candidate, and that misleading sound bite stuck. The NAACP and other civil rights groups opposed Souter, in what turned out to be a colossal misjudgment of what kind of justice he would be.

Within just a couple of months after his nomination, Souter won Senate confirmation 90-9.

Twenty years later, another nominee awaits a Senate vote, and it's almost incomprehensible that she'd come close to Souter's total. That's less a commentary on Elena Kagan's credentials than on the posturing that now passes for governing in Washington.

Look at what happened to Justice Sonia Sotomayor, who was confirmed not quite a year ago by a 68-31 vote to succeed Souter. Here was an experienced jurist who'd been nominated to judgeships by both Republican and Democratic presidents, and yet because she was picked by President Barack Obama some GOP senators concocted flimsy justifications to oppose her.

Same thing with Kagan, who would replace Justice John Paul Stevens.

Because she's not embarrassed to be called liberal, she's been tarred as having a radical, pro-abortion agenda and showing disregard for the law.

Because she's only been a practicing lawyer, dean of a pre-eminent law school, an adviser to President Bill Clinton and U.S. solicitor general, she's been misportrayed as unable to judge without injecting personal politics or beliefs.

South Carolina Sen. Lindsey Graham was the only Senate Judiciary Committee Republican to say honestly that even if he wouldn't have picked her, she's qualified, has good character and can tell a judge from a politician.

Texas Sen. John Cornyn, though, said he'd vote against Kagan because she hasn't met his "standard of excellence."

What he meant was she hadn't promised to put the kind of brakes he wants on the Constitution's commerce clause in order to derail the health care reform legislation or to uphold a broad interpretation of the Second Amendment against any gun-control attempts.

Especially amusing was Cornyn's complaint about Kagan's testimony calling recent court rulings on gun bans "settled law."

In a statement announcing his opposition, Cornyn said, "Her testimony made clear that 'settled law' has no particular meaning. 'Settled law' just means the law until a new majority comes along to 'unsettle' these decisions by overruling them."

That's actually not far off the mark. But why was Cornyn not outraged when the court earlier this year undid settled precedents on campaign finance limits largely because a change in court personnel gave the dissenters from a 1990 ruling the majority they needed to overturn it?

Some Republicans will oppose Kagan for no more reason than that Obama as a senator voted against Chief Justice John Roberts and Justice Samuel Alito, both nominated by President George W. Bush.

Though Roberts had the qualifications, comportment and temperament to sit on the court, Obama said at the time, he was concerned Roberts wouldn't uphold the court's historic role "as a check on the majoritarian impulses" of the executive and legislative branches.

Alito, Obama said, was qualified but consistently sided with the powerful against the powerless.

You can disagree with those votes, but they were clearly political choices, not contrived rationalizations, like claims about being "out of the mainstream."

Nothing prevents senators from voting "no" for whatever reasons they choose.

But they shouldn't pretend a nominee is unqualified when it just isn't so.