Kagan Fears Politicized Confirmations Are Destroying Public Faith In Courts

YouTube screenshot/Harvard Law School

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Kevin Daley Supreme Court correspondent
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Supreme Court Justice Elena Kagan criticized the current state of the judicial confirmation process this week, telling a student group that politicizing nominations harms the public’s perception of the courts.

Her remarks come just weeks after President Donald Trump nominated Judge Brett Kavanaugh to succeed Justice Anthony Kennedy on the high court, setting off a generational fight over the future of the nation’s highest judicial tribunal.

“It’s an unfortunate thing, because it makes the world think we are sort of junior varsity politicians,” Kagan said of recent confirmations. “I think that’s not the way we think of ourselves, even given the fact that we disagree.”

“There is so much tit-for-tat for tit-for-tat that goes on in these processes,” she said elsewhere in her remarks. “Everybody has their list of times that they’ve been wronged. The Republicans have their list and the Democrats have their list.”

The justice was referring to the bare-knuckle partisanship that characterizes judicial confirmations in the modern period, a history littered with the failed nominations of legal luminaries in both parties. (RELATED: Kavanaugh And Allies Celebrate Early Confirmation Successes Over Beer And Chips At The White House)

Kagan herself was a victim of confirmation politicking; though nominated to the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton in 1999, Republicans on the Senate Judiciary Committee refused to hold a hearing on her nomination, which lapsed when President George W. Bush took office in 2001.

She also noted that many judicial confirmation votes follow party lines. The last Supreme Court nominee to draw more than a handful of votes from the opposition party was Chief Justice John Roberts — 21 Democrats voted in favor of his 2005 confirmation.

As Kagan noted, more seniors members of the Court like Justices Ruth Bader Ginsburg and Stephen Breyer were each confirmed on lopsided votes. The late Justice Antonin Scalia was confirmed 98-0.

The justice made the remarks to a student group from the University of Chicago, who posted a recording of the 30 minute question and answer session on YouTube.

Kagan did not reference Kavanaugh’s nomination at any point in her remarks. As dean of Harvard Law School, Kagan recruited Kavanaugh to teach courses over the winter term.

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