Political InQueery: The Supreme Gap Between Reality and Make-Believe

Everett Maroon
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Everett Maroon is a memoirist, essayist, and fiction writer originally from New Jersey and now living in Walla Walla, Washington. His blog is transplantportation.com and he tweets at @EverettMaroon.

June 28, 2010, is a Monday. It is also roughly a week after the summer solstice, so just as the days start getting shorter here in the northern hemisphere, the United States Senate will begin hearings to confirm Elena Kagan as the next Associate Justice of the Supreme Court. Sound the trumpets and flip the play button on a rousing Sousa march.

Elena KaganWait a minute—it's probably not going to transpire that way.

I have a number of friends and loved ones who are addicted to The West Wing, the Aaron Sorkin-created NBC series that ran from 1999-2006, and honestly, 2006 seems like a lifetime ago in terms of watching this show. It didn't have long to get its message of brilliant governance and witty backroom banter out before we all suffered through the brutal reality of September 11, 2001. For me and many others, the narrative suddenly seemed out of touch, quaint almost, drowned out by chants of "USA, USA, USA!" Still, there was something lovely about escaping an hour at a time into a near-perfect political world. Strategy, for one, was always spot-on.

Take the fifth season episode, "The Supremes." A few episodes before, we see the Chief Justice, a heart-on-his-sleeve, old-style liberal, have what looks to be like a mini-stroke; guest star Matthew Perry checks on him in the hospital (which, incidentally, looks nothing like the George Washington University Hospital in DC) and is troubled to see that the judge is not doing well. A few episodes later, he has recovered, determined to stay in the job until hell, high water, or another medical catastrophe. 

The Chief Justice has just, it seems, outlived an Associate Justice, and in the machinations to find a replacement, our intrepid Chief of Staff Jr., Josh Lyman, brings in none other than Glenn Freaking Close, who is something of a carbon-copy liberal lion of the ailing Chief. Problem is, the just-deceased Associate Justice was not a liberal, so there likely won't be any support for her. Josh doesn't much care, as he just wants the GOP to get wind of her so that when they pull out their real nominee, a moderate, the right will be relieved. Because nobody will see through that plan—*cough cough* Harriet Miers *cough cough*.

Glenn Close on the West WingBut the red herring candidate has so much political savvy and legal knowledge, Josh is a moth to a bonfire and can't resist her. Then she drops a bombshell: she's had an abortion. The senior White House staff want to run away from her. Good thing they're just dangling her around and not really interested in her. The President is horrified that anyone would be persecuted for doing something legal. Where has he been hiding, under a rock? Oh wait, he's been in the Oval Office. Same difference.

Josh and the Director of Communications, one very misanthropic Toby Ziegler, hatch a crazy-sounding plan: since they're worried the Chief Justice won't make it much longer, why not get her on the court by offering to put whatever neoconservative zealot on that the GOP wants? They just need the Justice to step down. Too bad having the White House ask him to do it is totally and utterly illegal. But they figure they can suggest it, all polite-like. He agrees, knowing this is his best chance to get out and keep the left wing intact.

Now the GOP has come up with a guy who apparently is the Ann Coulter of judgeships. So they spend a good 20 minutes of the episode acting like he has the cooties when really he's just got a terrible slicked-back hairdo. They see the repartee between the two candidates and know, just know, that this is going to work out. Because five minutes in a room with two law-minded people bantering is a great Litmus test of how they'll come up with perfect judgments on the court. But hey, it makes some kind of internal sense, I'm sure.

All goes as planned, if planned means getting through the press conference to announce this musical chairs strategy. President Bartlet asks Glenn Close to sign a copy of the Constitution as the Chief Justice. When she asks if that isn't premature, the President reassures her that she's a lock. I wonder if that's what Reagan said to Robert Bork. Cue the sweeping violins to signal the end of the episode. Oh, happy day.

President Obama and Associate Justice SotomayorThere is a reason that fiction ends here and doesn't show us the nomination hearings for either of them. Because that part is messy, and full of individualized ulterior motives and Machiavellian tactics. "I'm worried my constituents think I'm soft on X topic. Let me ask the candidate about it here. Because two of my constituents will ever watch me asking this question." 

When President Obama nominated Sonia Sotomayor to the bench, the rhetoric was, in a word, weird. She was, depending on which talking head was making sounds come out of its mouth, the following:

  • A reliable liberal vote
  • From the far left
  • Too Catholic
  • Too centrist
  • Possibly not ready to be objective
  • Would not have been nominated if she weren't Hispanic
  • Will impose her personal beliefs on the bench
  • The right choice

It is possible that not all of these adjectives and attributions could be true of any one person. And her nomination process was considered relatively trouble-free.

Elena Kagan made the short list that Sotomayor topped, and now it's her turn to run through the process. Even as her nomination was announced, people began questioning her record, her lack of judicial record, since she's never been a judge, even whether she's racist. She may not have as smooth sailing as her immediate predecessor. Here is where things get interesting, rhetoric-wise, even if this is where NBC would fade to black.

Oh Capitol Hill people—we'll be watching.


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15 Comments Have Been Posted

We Should Do The Research And Reading Ourselves

With some possible exceptions, i think Elena Kagan will probably wind up being one of the better Supreme Court Justices. I am somewhat concerned, as i noted on my May 9th, 2010 blog post asking <a href="http://www.sissypantybuns.com/wordpress/?p=274" rel="nofollow>"Will Elena Kagan Be The Next Supreme Court Justice?"</a> : "Briefly skimming an <a href="http://www.harvardlawreview.org/issues/114/june01/Article_7038.php" rel="nofollow">Harvard Law Review paper (Vol 114, No 8 (Jun., 2001) pp. 2245-2385) on presidential administration by Elena Kagan</a>, the document appears to me to lean in favor of a notion that Federal departments, bureaus and agencies may be both overseen and directed by the Executive rather than the Legislative branch of the federal government except for those areas where Congress has specifically precluded the Executive branch from asserting such authority. Her record is positive with respect to gender based discrimination, but less than stellar with respect to privacy and the right to Habeas Corpus. Those are my impressions, but it would be best for each person to do the research and reading and decide for themselves what they think. themselves. Unfortunately, as we can see from most of the prior Senate confirmation hearings (like the ones for Alito, Roberts and Thomas), that the real substantive questions will not be answered, and that they are political theatre. I believe she will be confirmed am hope that she will turn out to be better than Justice John Paul Stevens, whom she would be replacing. We could have done a lot worse.

I appreciate and share

I appreciate and share progressive concerns about Elena Kagan, but I am ultimately supportive. The fact that she has supported some of the Bush/Obama policies regarding habeas corpus doesn't tell us much about her personal legal views since her job as Solicitor General was to argue the position of the government.

Some personal comments have suggested she is critical of it. In a 2005 letter, Kagan compared legislation limiting the Supreme Court’s review of indefinite detentions at Guantanamo Bay to “when dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners,” and called it “fundamentally lawless.” This doesn't tell us how she might rule in a case, but it suggests her opinion on the matter.


She also opposes the ridiculous decision in Citizens United that gave corporations unchecked ability to influence elections. She argued the government's case, and reaffirmed her personal opposition to the decision in conversation with Arlen Specter.


Regarding abortion, NARAL has recognized that she has "respect for women's freedom and privacy as defined by Roe v. Wade--and the writings are consistent with the pro-choice position adopted by the Clinton White House."

She argued in a recently released 1996 memo that complete partial birth abortion bans would be unconstitutional unless they included an exemption for cases in which there would be "serious adverse health consequences" for the mother. She wrote a similar memo to President Clinton in 1997 urging him to support exemptions for health-risk cases in a partial birth ban.




Fifth Season "West Wing" Episode "The Supremes" Scenario

i never saw the fifth season episode West Wing episode "The Supremes" but it is very interesting as described. i suspect Elena Kagan's confirmation hearing and all the behind the scenes White House stuff will go a little like the Sonya Sotomayor confirmation hearing did, albeit with more political posturing because it is an election year. If President Obama gets a chance at a third appointment though, i could imagine it going more like the "West Wing" episode written about in this post. If i get the chance, i will have to watch that West Wing episode. It sounds very sharp and entertaining.

President Bartlet asks Glenn

<em>President Bartlet asks Glenn Close to sign a copy of the Constitution as the Chief Justice. </em>

Or Dean Stockwell gets Philip Baker Hall to pressure Vice President Glenn Close to sign some documents stating President Harrison Ford is incapacitated because he's tussling with Gary Oldman in a busted up Air Force One plane...

It seems particularly interesting the nomination comes during the summer rerun season. I guess perhaps many will not realize, <em>Who Wants to Be A Supreme Court Justice</em> isn't a new series from Fox.

I look forward to more updates from you on this story.

"In real life as in Grand Opera, Arias only make hopeless situations worse." - Kurt Vonnegut Jr.

Folks, I am really loving

Folks, I am really loving this comment thread! I'm really glad to see such nuanced ideas about Kagan and the process.

great post. I love WW, but

great post. I love WW, but the analogy isn't perfect since, of course, Alito is no "moderate." He's just as right wing as Harriet Miers! He may be more competent and qualified than Miers, but, to be fair, I think the actual Glenn Close would be more competent and qualified.

And Kagan has already received absurdity similar to Justice Sotomayor. 'Why is she not protestant?' 'Is she gay?' and so forth, not to mention the widespread 'is she liberal enough?' and 'is she experienced enough?' My guess is that the process will be no WW walk in the park, but parallel to the Sotomayor process. And I'm sure with another week or two and a few days of hearings, there are at least a few sexist/anti-Semitic chestnuts waiting for us.

I anticipate Kagan's hearing

I anticipate Kagan's hearing to be a bastion of sexist/anti-gay rhetoric. The criticism of her body and femininity (e.g. Leg-crossing scandal, WSJ's "Softballgate"), Peter Beinart's suggestion that Kagan is "deviant" because she doesn't have children, the far-right's determination of her sexuality, all coupled with her religion are bound to lead to contentious hearings. I think there will be little room for actual policy debate - since identity politics seems to be the only thing driving the right.




@bravo: I think Harriet

@bravo: I think Harriet Miers is the red herring to Justice Alito who Bush really wanted on the bench, like Close was the bait for the moderate Bartlet wanted on the bench . . . the polarity of the choices were less the focus of my analogy than the tactic.

Yes, give it some time and I'm sure the rhetoric will get classy really fast. Wait. Scratch that, reverse it.

Now if they can just get

Now if they can just get someone on the bench who can out-write Scalia. My god, Scalia and I do not agree on much, except he can write. grrrr. I spent an entire summer reading his decisions and books about/by him, with a tall refreshing glass of hateraid perched next to me on a coaster.

"In real life as in Grand Opera, Arias only make hopeless situations worse." - Kurt Vonnegut Jr.

yeah, i knew what you were

yeah, i knew what you were saying. but as a rule i never pass an opportunity to spew my hatred of roberts/alito/scalia/thomas/kennedy

!!! I also have heard/read

!!! I also have heard/read he doesn't write many decisions. He's an intelligent man, but not especially a brilliant legal mind. I wonder if he's veering back to his more tolerate, liberal ways. It seems he became a repub because he had some run ins with a few people who I suppose called him an "Oreo" one too many times.

I shake my fists at those people!

"In real life as in Grand Opera, Arias only make hopeless situations worse." - Kurt Vonnegut Jr.

I doubt Thomas is veering to

I doubt Thomas is veering to more "tolerate, liberal ways." His wife, Virginia, started her own tea part group (www.libertycentral.org) and his son is heavily involved with the group as well. Many have questioned Thomas's objectivity on the bench.

I was being fatuous. I know

I was being fatuous. I know Justice Thomas is pretty dogmatic in his beliefs and truculent. I also know he doesn't seem to have a whole lot to say in regards to what actually happens in the court. Just because it's a lifetime appointment, doesn't mean one <em>should</em> stay there. It might be time for him to retire and pursue his passion for vitriol, arrogance and bootstrap metaphors.

"In real life as in Grand Opera, Arias only make hopeless situations worse." - Kurt Vonnegut Jr.

Will Bork et al vs. Kagan Make West Wing Seem Tame?

Despite suggesting that further study was needed i have not read the <a href="http://www.aclu.org/organization-news-and-highlights/aclu-releases-repor... rel="nofollow">report released by the ACLU on Supreme Court nominee</a> but an awful lot of other people are not waiting to do any more study. Far right wing ideologue and former Supreme Court<b>anti-abortion forces have united to oppose Elena Kagan</b>. According to an article written by Associated Press Writer Julie Hirshfeld Davis and covered by MSNBC, former failed Supreme Court nominee <a href="http://www.msnbc.msn.com/id/37827759/ns/politics-supreme_court/" rel="nofollow">Robert Bork will join rabid anti-abortion activists in publicly opposing Supreme Court Nominee Elena Kagan.</a> Robert Bork is well known for his outspoken right wing views, and the groups he has teamed up with (like "Americans United For Life"), are determined to overturn Roe v. Wade and make abortion illegal. Many bloggers are taking Bork's opposition to Kagan as a plus for Kagan, but - <b>Beware! Vicious attacks on Elena Kagan are probable.</b> Now i'm wondering whether perhaps West Wing scenarios may wind up being tame compared to reality.

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