The second round of Survivor: Supreme Court – Obama Edition has begun, and there isn’t much chance Elena Kagan will be voted off the island.  The Republicans should try anyway.  She isn’t a very good nominee.  Was there no one with a more impressive resume, and a greater volume of published work, who could be nominated?  Not a single experienced judge was fit for the job?  A Supreme Court justice holds a position of great power and importance, which will be occupied for decades.  A nominee should appear before the public with great fanfare, not a few half-hearted toots on a rusty trumpet.

Impressive judicial minds don’t receive Supreme Court nominations anymore, because it has become a completely political office.  The nominee is not seen as a dispassionate scholar of the Constitution, but rather an agent of the President’s philosophy.  This is an inevitable result of government growth.  Big Government infuses every aspect of life with politics, which can only be resisted with legal instruments.  If you don’t like what Uncle Sam is doing, you can’t take your business to one of his competitors.  Influencing government policy through the vote is an expensive, collective process which takes years.  Your only recourse for short-term relief is the courts, and in the most significant matters, that course will lead you to the Supremes.  A political society is a legalistic society.  Politicians and lawyers flock together, and nourish each other.

Resistance to Supreme Court nominees is treated with sneering dismissal in some circles.  Because the Court is such a powerful political force, such resistance is only natural.  A Republican can be expected to oppose a proponent of Democrat doctrines, and vice versa.  There’s nothing tedious or shameful about it.  There should be vigorous questioning, and the public should pay close attention.  The Republicans have a valuable opportunity to express their beliefs through the character of their opposition.  They did a surprisingly good job of this during the Sotomayor hearings… up until they folded like a house of cards.

A spotty paper trail is more than just an inconvenience to the opposition party.  America deserves a justice with a lifetime of thought about the great issues of freedom and government.  These are mighty issues indeed.  How can a President who nationalizes industries and triples the national debt pretend the Supreme Court is an entry-level position?  A stealth candidate is an insult to the people of this country, who are well aware that a great battle over their relationship with the State has been joined.  One of the few areas where Kagan left intellectual footprints is the First Amendment, where her views seem compatible with those of a President who frets about people having too much information.

The matter of Kagan’s opposition to campus military recruiters is important.  It illustrates her nature as a political operative.  The attempts to spin – or outright deny – her behavior reflect badly on the Administration.  Would Democrats giver her a pass if she were a Republican nominee who tried to boot Americorps off campus?  Does a nation sick of power politics want to hand decades of influence to someone whose doctrinaire beliefs took precedence over military readiness… and were later sacrificed to appease the gods of federal funding?  Is that what America deserves on her Supreme Court?

There is some concern Kagan will be the Supreme Court judge who imposes gay marriage upon an unwilling country.  It was rather unlikely Obama would appoint anyone inclined to vote against it, but the Court only rules on the cases brought before it.  Would Kagan’s presence make such a case more likely to appear?  I don’t think this is a battle the country is ready to have right now.  Even those who support gay marriage should consider the effect of imposing it by judicial fiat, instead of fighting the steady battle state-by-state, where they’ve had some success.

The mood swelling in this country is one of exhaustion with the efforts of the elite to reshape the people.  It’s long past time for the people to reshape their political class.  We’ve had cultural flashpoints popping off in our faces like cameras along a Hollywood receiving line.  We don’t need any more diktats, but I suppose a little stability was too much to ask from a “transformative” President.

Kagan isn’t the worst nominee Obama could have put forward, but that’s very faint praise.  There was no chance he would send Antonin Scalia a sidekick, but we should at least demand better than an apparatchik whose major qualification is the pile of papers she hasn’t written.  The Republicans may not be able to keep her off the Supreme Court, but they can spend the next few weeks carefully explaining why she shouldn’t be there.  The difference between an “academic” and a scholar is the difference between an activist and a judge.

Cross-posted at www.doczero.org.

This post was promoted from GreenRoom to HotAir.com.
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