The real reason to be wary of Elena Kagan

Let’s get the big, driveway alarm-activating statement out of the way up front: I’m not overly concerned with the alleged lesbian orientation of President Barack Obama’s current Supreme Court nominee, Elena Kagan. Here’s why: with the exception of a couple issues, I don’t see it as an element that would color her potential judicial decisions beyond what any politically-liberal Barack Obama-nominated Supreme Court justice would otherwise be like.

Let’s face it; Obama won the White House and with that comes the privilege of nominating people he feels might be like-minded to the Supreme Court when there’s a vacancy. Even if the allegations are true, as an alleged lesbian, I sincerely doubt there would be much difference between the way she, or any other potential Obama appointee, would rule on cases.

So, for me, her sexual orientation is a bit boring and a distraction from any real, genuine, meritorious objections to her nomination. Are there any?

You bet.

The main one, and what I think makes her not the best choice for confirmation, is just her general lack of experience in a judicial role.

Otherwise, her resume’s an impressive one. Dean of the Harvard School of Law. Assistant Solicitor General arguing the Obama administration’s position before the Supremes. She’s a woman of accomplishment. But ready to ascend to the bench of the highest court in the land?

Not yet.

Kagan is the sort of nominee that would be better-suited to starting out on an appellate court level, gaining judicial experience, learning the difference between being a legal advocate and being a fair and even-handed judge. Such a move would be kinder to Kagan, and of greater service to the Supreme Court.

Many media reports stuffily point out that many Supreme Court justices have come from non-judicial backgrounds. This is true, though no current Justice comes from a non-judicial background. And what the media fails to point out is the rather thin record of any of those Justices from non-judicial backgrounds going on to stellar, legally and Constitutionally-sound careers on the court.

The last non-Judicial Supreme Court nominee was Harriet Miers, a one-time White House legal counsel to then-President George W. Bush. Miers withdrew herself from consideration because of the uproar caused by her lack of Judicial experience.

That is the parallel I see in the Kagan nomination; she is Barack Obama’s Harriet Miers. And on the same basis of lack of judicial experience, Kagan should follow in Miers’ footsteps and withdraw her name from consideration. If she wishes the ascend to the bench, her accomplishments are certainly sufficient to merit a lower-court seat. Give her some time there, and I’m certain that if there’s any truth to Justice Ruth Bader Ginsberg’s alleged pancreatic cancer diagnosis, President Obama will have a chance to appoint at least one more member to the highest court in the land during his first term. Hopefully not soon, for Justice Ginsberg’s sake… but it’s an eventuality.

Why rush Kagan to the top? With her resume, even a brief lower-court career would certainly help her fill out the holes in her otherwise-impressive resume for a seat with the Supremes.

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