Gotcha Politics (or, Advise and Misrepresent)

May 27th, 2010

Inspired by Senators working to piece together portrait of Kagan (Washington Post 5/26/10).

“Some of Supreme Court nominee Elena Kagan’s detractors found a passage in her writings that they say endorses the view that a judge’s work is outcome-based, influenced by personal opinion and experience.” – Washington Post
“[Because judges are also] participants in American life, [they] will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. [However], no court should make or justify its decisions solely by reference to the demands of social justice… Judicial decisions must be based, above all else, on law and reason.” – the offending passage from a paper written by Kagan at the age of 22 (before she even started law school)

“My assumption is we should expect the person nominating them to be pretty sure where they are. That means I think she’ll be pretty much where Obama is.” – UCLA law professor and libertarian/conservative blogger Eugene Volokh
“One thing we can learn in this lesson that I have learned and Elena Kagan is learning now is don’t assume that you can engage in a hypothetical discussion about constitutional impacts with a Senator or right-wing pundit who has an agenda, who may be prejudiced before they even get into the interview in regards to what your answer may be.” –Sarah Palin on Fox News Sunday (slightly modified)
“[The President] shall nominate, and by and with the Advice and Dissent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” — U.S. Constitution article II section 2 (also slightly modified)


Sister Sarah says she doesn’t like “gottcha” journalism

(At least not when practiced on her allies).

Too bad she doesn’t her own fellow travelers

Similarly chastise.


The offending passage Kagan haters have discovered

(Actually, through painstaking opposition research uncovered)

Is a 28 year old quote

From a school paper Kagan wrote.


Their criticism is still no slam dunk

Because it ignores the passage’s second chunk

Saying judicial decisions should be based on law and reason,

Which hardly sounds like grounds for a charge of treason.


(Of course, Republicans don’t mind outcome-based decisions

Or activist court positions

When they reach the outcomes they propose

And overturn laws they oppose.)


What Professor Volokh says is correct:

A moderate liberal nominee is what we should expect.

After all, Kagan’s hardly been nominated incognito,

So Republicans should know she won’t be a Scalia, Roberts, or Alito.


Of course, Republicans already know that,

So my protestations will undoubtedly fall flat.

They’re not doing research to find information,

They’re doing it to find material for their misinformation.

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