After Kagan Endorsement, Lugar Should Not Run
Ahead of the full Senate’s vote to confirm U.S. Solicitor General Elena Kagan’s nomination to the Supreme Court, Senate Richard Lugar has declared that he will vote in favor of President’s nominee. Luger joined South Carolina’s Lindsey Graham in becoming the first two Republican Senators to publicly support Kagan, who has a thin record of judicial experience but a very well-documented record of political maneuvering, and is arguably the most liberal individual to ever be nominated to the Supreme Court.
As disappointing as it is that Lugar would heartily back President Obama’s Supreme Court nominees, it should have come as no surprise. In the early months of his administration, the President nominated federal district judge David F. Hamilton, then serving in Indiana, for an opening on the federal appellate bench. Hamilton made a name for himself several years ago when he ruled that prayers uttered in the name of Jesus Christ in the Indiana General Assembly violated the establishment clause of the 1st Amendment. Hamilton’s reasoning was obtuse, his use of precedent horrendous, and eventually his ruling was overturned by the very appellate court on which he now sits. Despite that, however, Lugar still praised Hamilton effusively when the President picked him as his first judicial nominee.
Lugar’s stated reasons for backing Kagan are that she is “clearly qualified” and that she has a “distinguished career in both education and public service.” Ms. Kagan is the least experienced judicial nominee in perhaps the history of the court. She has never served on the federal bench and has absolutely no prior experience anywhere as a judge. Her most extensive work experience that could apply to her new job is her recent work as Solicitor General, where she has only argued cases before the Supreme Court.
The “distinguished career” that she has amassed includes vehemently opposing military recruiters on the campus of Harvard Law School, and working in the Clinton White House to carefully review important legal matters through the lens of political calculation. At various points in her past she has expressed acceptance of the idea that U.S. courts should look beyond the Constitution and towards international legal norms (established by the U.N., European Union, and others) for guidance in their decision-making.
The bar for what constitutes “clearly qualified” has been significantly lowered if, in the eyes of Sen. Lugar, Ms. Kagan is just that. Micah Clark, of the American Family Association of Indiana, said, “If this is the new low standard for ‘clearly qualified’ to be one of just nine members of the highest court in the nation with enormous power to control our lives, our system of government and a lifetime appointment to boot, then we are really in trouble.” Clark is right. Unfortunately, Lugar refuses to set aside his thinking that Congress somehow owes it to the President to confirm his judicial nominees.
Those like Lugar and Lindsey Graham, who argue that they must vote for any and all judicial nominations out of respect for the President, or just because they personally deem them to be “clearly qualified,” are disengaging from their job. Just as Presidents win elections and thus the prerogative to appoint whomever they wish, Senators are sent to Washington to be a check, not a rubberstamp, on executive power. In easily passing favorable judgment about Ms. Kagan’s nomination, Sen. Lugar failed to do what the people of Indiana sent him to Washington to do. Further, by so quickly and uncritically embracing a judicial nominee who is nothing more than a left-wing lawyer-activist, Lugar failed his own Republican Party.
In 2012, Senator Lugar should pass up the chance to run again; he should retire and leave the field open for a stronger, more vigorous, more conservative candidate who will not uncritically accept the dictates of Washington as direction for how he should fulfill is personal responsibility. Indiana, and Indiana Republicans, deserve better than Richard Lugar.