Kagan Konfirmed

As everyone knows and expected, Elena Kagan was confirmed by the Senate to be a Justice on the Supreme Court. Also as expected, the vote was pretty much along party lines. Because she replaces another liberal (Stevens) she is not expected to alter the Court’s prior ideological balance of 4 liberals, 4 conservatives and a swing voter (Kennedy). LINK The polarization of American society will continue to be fueled by and reflected on the Court. For the first time in history, the Court will have 3 women—all liberals. She is the first nominee in almost forty years to come to the nation’s highest bench without judicial experience. While there have been outstanding justices who had no judicial experience (e.g. C.J. Earl Warren), her lack of judicial experience is a concern. (1) There was no judicial opinion paper trail to follow to determine the nominee’s judicial philosophy. Confirmation hearings have become a joke as nominees dodge all the important questions. (2) A Justice with prior judicial experience is, one would think, more likely to approach issues from a judicial stance rather than a policy-making, ideological or academic stance. (I am assuming that most of us want Justices to take a judicial approach). The sad fact of the matter is that Presidents of both parties have been more interested in trying to nominate their ideological clones than finding wise judges. Roberts and Alito have certainly generally satisfied Bush, and there is little doubt that Sotomayor and Kagan will, in general, become Obama clones. One might even expect that because of the similarities in their backgrounds, Kagan, at least initially will become a Sotomayor clone. Quite frankly, IMHO, both of them are minor intellectual legal lights as compared to Ginsburg, who had a long history of involvement in constitutional litigation and a number of appearances as counsel before the Supreme Court.