I listened to Senator Chuck Grassley’s opening statement at the Elena Kagan hearing yesterday. Kagan has been nominated by President Obama as the next Associate Justice on the Supreme Court of the United States. The Senator clearly spelled out his concerns about Ms. Kagan’s lack of judicial and non-political legal experience. The Senator appears to face an unprecedented dilemma in deciding whether or not to support the nomination of a lawyer who spent a portion of her career advising politicians.
Senator Grassley expressed this concern to Kagan by saying, “what is lacking from your background is any experience on a state or federal court, or much experience as a practicing lawyer. We don’t have any substantive evidence to demonstrate your ability to transition from a legal scholar and political operative to a fair and impartial jurist…it’s our duty to confirm a nominee who won’t come with a results-oriented philosophy or an agenda to impose his or her personal politics, feelings or preferences from the bench. It’s our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.”
The Senator scored a few points. If you are wondering if any previous political nominees to the bench were able to win over Grassley, you do not have to look too far back for an example of one who did. Elizabeth Crewson Paris was nominated in 2008 by President George W. Bush to a fifteen year term on the United States Tax Court. For the eight years leading up to her appointment, Judge Paris provided political and legal advice to Senator Grassley and the Republicans serving on the Senate Committee on Finance. In her role as a partisan staffer, Judge Paris regularly provided legal advice that was surely every bit as political as that offered by Ms. Kagan during her year serving President Bill Clinton.
At the Paris hearing on April 17, 2008, Senator Grassley said this of Elizabeth Crewson Paris, “Working in a truly bipartisan manner, she knows that nothing gets done in the Senate that is not done in a bipartisan way, so she consequently never hesitates to offer her guidance to any staffer or member, regardless of political affiliation.” Grassley then apologized and left the hearing to work on the farm bill. He was obviously satisfied that this Republican staffer could be fair and that her lack of courtroom experience could be overlooked. Perhaps, he will be able to attend all of Ms. Kagan’s hearing and be convinced the same can be said about her.
Senator Grassley closed his remarks to Elena Kagan yesterday by saying, “your relatively thin record clearly shows that you’ve been a political lawyer. Your papers from the Clinton Library have been described as showing ‘a flair for the political’ and a ‘flair for political tactics.’ You’ve been described as having ‘finely tuned . . . political antennae’ and ‘a political heart.”
I had the opportunity to work with Judge Paris when she was a Senate staffer. The same attributes could be applied to her. There have been few Senate staffers more familiar with tax law than she and even fewer as skilled in the art of politics. Senator Grassley was able to see a way around such concerns when one of his own staffers sat in the confirmation hot seat. Maybe, he will be able to do the same with Elena Kagan.
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