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Solicitor General Elena Kagan nominated, more - Post Politics Hour

Ben Pershing
Washington Post Staff Writer
Monday, May 10, 2010; 11:00 AM

Discuss the latest news about the Obama administration and the world of politics with Ben Pershing, who writes for The Post's 44 blog.

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Ben Pershing: Good morning, Internet. Nice and quiet in the world of politics this morning, right? Except for the part where Obama just nominated Elena Kagan to the Supreme Court. And Sen. Bob Bennett lost in the Utah over the weekend. And financial reform is moving forward in the Senate. And the Lakers are up 3-0. And I've had a lot of coffee already. Let's discuss.

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Kagan Vote in Senate: Republicans who voted for Kagan as Solicitor General: Coburn, Snowe, Collins, Gregg, Kyl, Lugar, Hatch.

Should be interesting to see if any of those votes change a year later, no?

Ben Pershing: Yes, it will. But I think we can predict what those Republicans will say. There are Senators on both sides of the aisle (Coburn on the R side and Feingold on the D side, for example) who will argue that presidents deserve to have "their team" in place to carry out their policies. (And yes, I know that Coburn has placed lots of holds on Obama nominees. But he's also voted for some, like Kagan.)

Republicans will argue that as Solicitor General, Kagan's job was to support and/or defend Obama administration positions. But the Supreme Court is a lifetime appointment, and is an independent branch of government, not part of Obama's "team." So they will say a different standard should be applied.

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Reston, Va.: Sen. Lieberman is introducing a bill to take away the citizenship of Americans who are suspected of terrorism. Is this bill going anywhere?

Ben Pershing: At the moment I don't see it going anywhere unless Lieberman hatches a strategy to try to attach it to another bill. Because even some Republicans -- including John Boehner in the House -- have said they have problems with Lieberman's bill. In particular, the more Libertarian wing of the GOP would have big constitutional problems with it.

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Floris, Va.: Perry, if the economy continues to create jobs in the 200,000 plus range for the next six months with the jobless rate edging down, how much of a game-changer will that be in the November elections?

Ben Pershing: Perry Bacon and I traded chats so I'm filling in for him today. For all the talk of other issues influencing November -- health care, immigration, nat. security, the Supreme Court -- midterm elections are often referenda on the economy. Now, the question isn't so much whether the economy will be significantly better by the time Election Day rolls around. The question is whether voters will BELIEVE the economy is better. Public opinion is often a lagging indicator here.

Remember that in 1992, George H.W. Bush was pilloried for arguing that the recession was over and the economy was improving. Technically he was right, but voters didn't believe it -- or see evidence of it yet in their own lives -- so they punished him. The same thing could happen this November, further fueling an already strong anti-incumbent sentiment.

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Falls Church, Va.: The Post is focused on criticism of Kagan from the right, but so far Kagan has received harsh criticism from the left, because she is seen as too centrist. Will the left fall in line behind her, or will she be another Harriet Miers, in the sense of being abandoned by her own party?

Ben Pershing: I have definitely heard/seen rumblings from the left that they don't think that Kagan is liberal enough, particularly since she is replacing the liberals' favorite justice -- Stevens. But the Alliance for Justice, a key liberal judicial group run by Nan Aron, has already put out a supportive statement this morning. I don't expect you'll hear a lot more public complaints from the left, even if they're disappointed privately.

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Helena MT: Not interested in how many Rs vote for Kagan, just want to know if there are 40 who will filibuster. She won't need any R votes for confirmation - should be enough Ds to vote for her.

Ben Pershing: At this point it's doubtful there will be a unified wall of opposition to her on the Republican side. So no filibuster -- unless something explosive in her personal or professional background comes out that we didn't already know. But remember, she's already been vetted and confirmed once for Solicitor General, so that seems unlikely.

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"...if the economy continues to create jobs in the 200,000 plus range for the next six months..." : Any of those private sector jobs, or does the question assume the Census will keep hiring until the election?

Ben Pershing: Yes, Republicans emphasized last week that Census hiring inflated the overall jobs numbers. But I believe the last report showed that 60K of the new jobs were Census-related, meaning that there were still 230K without it. So that earlier question was valid (as long as the monthly rate stays steady).

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Rhode Island: To follow up on Leiberman's proposed bill to revoke citizenship and due process for those who are accused - not convicted; accused - of terrorist acts: what on earth possessed the Obama administration to make noises that indicate they think this might be a good idea?

I'm sure hoping it's in pursuit of appearing bipartisan and tough on terror. I'd hate to think he's just rolling over.

Ben Pershing: I don't think the Obama administration said they thought taking the citizenship of someone ACCUSED of terrorism was a good idea. But they may be willing to support that step if someone is convicted.

The other question on this whole issue would be determining who exactly is empowered to make the decision. Lieberman's bill would simply let the State Department decide, a problematic proposal to critics on the left and right.

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Evanston, Ill.: Why is Obama so timid in his SCOTUS appointments? Once again, Obama takes the left for granted.

Ben Pershing: Your question rests on the assumption that Obama wanted to nominate someone more liberal than Kagan but was politically afraid to do so. Do you have any evidence for that assertion? Because by all accounts so far, it seems that Obama really likes and admires Kagan and has for years. I think this is really who he wanted to pick, not just a fallback choice.

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Arlington, Va: Bennett's loss in Utah because he voted for TARP is a warning shot for any Republican running in a primary at home that s/he would have to purer than pure in order to come out ahead. I wouldn't expect much of a deviation from the "party line" from any Republican from now on. Watching former maverick John McCain gives you an idea of what the polticians think of the current political climate.

Ben Pershing: Bennett's loss was pretty striking, both because he has been quite popular in Utah for many years and because his overall record is pretty conservative (though not the MOST conservative in the GOP Conference). But his work with Ron Wyden on health reform didn't help him and his vote for TARP obviously was crippling. A lot of Republicans who voted for that bailout bill in 2008 very dearly wish they hadn't.

That includes Orrin Hatch, who now must be considered highly endangered in 2012, unless he just decides to retire.

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Supreme Court and geography: Let's imagine Elena Kagan is the nominee and is approved by the Senate, taking her seat on the court next fall. I know there are many ways that might not happen for any nominee, but hypothetically, let's say that happens.

Who would be the likely next nominee? I like Kagan for now because of her other qualifications, but am looking for some geographic diversity for the next one, whether it's Obama or someone after him who appoints them. Because of its significance, Brown vs. Board had to be unanimous (9-0) but it was also important that back then, presidents made sure the Court was geographically diverse, so the Brown v. Board Supreme Court included Southern justices (Alabama, Kentucky, Texas) as well as Northerners in that total of 9 -- not to mention Midwestern and Western justices too. It's ironic that our first president from Hawaii is not venturing far from the Atlantic Ocean with his picks.

Ben Pershing: You're right about the lack of geographic diversity. With Kagan, eight of the nine justices would be from east of the Mississippi River. Rehnquist and O'Connor -- both westerners -- were replaced by two easterners. There were some murmurs this time around that Obama might pick someone from the west to help balance the court. Janet Napolitano got some buzz, as did Sidney Thomas, a federal judge from Montana. But it's premature to guess now who would be the next nominee, because it's unclear when the next vacancy will occur.

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Fairfax, Va.: Is Homeland Security Sec. Napolitano facing any heat for having said early on that the Times Square bomber looked like "a one-off," a position that the Administration now seems to have repudiated with its statement that the bomber was working with the Taliban? You may recall that she said "the system worked" when the Christmas Day bomber was unsuccessful, and she was criticized for that remark. Is she developing a reputation for a loose tongue?

Ben Pershing: Saying that "the system worked" definitely got her in trouble but I'm not sure if the more recent comment will, or at least not as much. It appears that the administration only came to the firm conclusion that the Pakistani Taliban was involved in the Times Square attempt in the last couple of days. And even before that, there was no clear evidence that there were other attacks in the offing related to Times Square. So I don't think Napolitano's statement this time around will haunt her as much as the Christmas Day one did.

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the "new" Miranda: Ben, yesterday Eric Holder announced that he would request a change in Miranda rights. Now I lived in London and Paris in the '80s when there were a lot of real terror bombings. People didn't freak out or upturn the country's foundations. Why is it that the U.S. faced with bumbling "terrorists" who repeatedly use methods that repeatedly fail has to get it's knickers in a twist over relatively nothing?

I mean if the M-88 firecracker guy in NYC had succeeded the most that would have happened is a few people standing close by would have been burned. How do I know this? Cause any kid that has lived in the south or southwest makes the same exact device (maybe better with M-80's) all boring summer long. Been there done that.

Ben Pershing: First, let me commend you for using the phrase "knickers in a twist."

Second, I'm no MacGruber, but I believe you're incorrect to say that if the Times Square device had gone off "the most that would have happened is a few people standing close by would have been burned." Remember, there weren't just fireworks in that SUV. There were also propane tanks and fertilizer.

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judicial experience: Why do you need experience at McDonald's before you can move up to IHOP, but you don't need actual experience as a judge to be appointed to the SCOTUS. This isn't a totally sarcastic question, I just amazed at this. (And I'm a big Obama supporter.)

Ben Pershing: Is it true that you need McDonald's experience to work at IHOP? Did not realize their standards were so exacting. On a related note -- don't those IHOP "stackers," the pancakes with the cheesecake filling, look totally disgusting?

As for the meat of your question, some experts certainly think it's best for a Supreme Court justice to have been a judge previously. But you can also argue that a) a former Harvard Law School dean/current Solicitor General knows enough about the court to do the job well; and b) that some "diversity" of experience on the court can be a good thing. That's why some obersvers wanted Obama to nominate a politician to the court, to bring the perspective of someone who has actually interacted with and been elected by voters before.

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Harrisburg, Pa.: I am reading tweets. Conservatives seem upset over there being no Protestant on the Supreme Court. Liberals seem convinced that the court will be shifting to the right. One thing I note: people with instant communication almost never write anything positive about breaking news,

Ben Pershing: That's a good observation. And it really is striking that the court could soon be 100 percent Catholic and Jewish, in a country that still has far more Protestants than anything else. A colleague and I were just discussing this: Is there something cultural among Jewish and Catholic immigrant groups (Irish, Italian, etc.) that puts a particular value on becoming a lawyer? Are Jews and Catholics also significantly overrepresented in top law schools? I'm sure we'll read more on this subject in the coming weeks.

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Old Blue in Exile: Hey, Ben: Go Bears (just on general principles)!

In the wake of Tea Partiers' blow to Republican Utah Sen. Bennet this weekend, how fearful do you anticipate Republican senators (especially those up for reelection this year) will be to vote to confirm Elena Kagan to the Supreme Court?

In a related question, can Supreme Court (or other) nominations be held up by 40 Senate votes?

Ben Pershing: 1) Yes, Go Bears. You're my new favorite questioner. (That's the Cal Bears, not "Da Bears" of Chicago, for those of you who are unaware.)

2) In the current environment, I'm sure there will be Republicans who will feel particularly motivated to vote against Kagan to satisfy the Republican base.

3) It takes 41 senators -- or every single current Republican -- to filibuster a nominee.

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Hamilton, Va.: These comments about Kagan not being a judge, there was one earlier in Tracee Hamilton's sports chat, make no sense. There is a long history of non-judges being placed on the court.Two of the cheif justices in my lifetime, Warren and Rehnquist, were not judges prior to the SCOTUS appointment.

Ben Pershing: You're right -- neither Warren nor Rehnquist had been a judge before being named to the court. I'm sure we will here that fact recited roughly 3,000 times during Kagan's confirmation hearings.

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Evanston, Ill.: My assumption is that the left was decisive in getting Obama the nomination and therefore the presidency. Obama has now nominated two "centrists." Doesn't the left deserve a real liberal to replace Stevens? Obama just moved the court to the right.

Ben Pershing: That's one way to look at it.

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"Not Liberal Enough" - Really? : This smells a lot like a planned effort: have some voices on the left complain that she's "too moderate," have that make the newscasts, and fool people into thinking it's true.

Ben Pershing: And here's another way to look at it.

Maybe she really is a moderate, or perhaps there's a conspiracy.

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Washington, D.C.: I don't really care about the religious makeup of the court. Wasn't til last year that the court got more than one racial minority. Nobody seemed to mind that.

Ben Pershing: I'm not suggesting that people should be upset that the court won't have any Protestants. I just think that it's sociologically interesting.

And with that as my Big Word of the day, I'm signing off. Thanks for all your fine questions.

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