Kagan Nomination Sure To Spark Predictable Rhetoric

Late yesterday afternoon I started hearing rumors that President Obama had settled on his pick for the next Supreme Court Justice. Later, just before I went to bed, my BlackBerry started buzzing with reports that indeed, the President had made his choice, and that he would be publicly announcing it early Monday morning. Well, as luck would have it, I had already booked a tour of the Pentagon for this morning at 10:00 am, the exact time the President would be unveiling his nomination.

When you tour the Pentagon, there are a few rules. Among them: no carrying any weapons of mass destruction. Check. No chewing gum. Check. And most importantly, no cell phone use (the guide makes everyone turn them off). Not wanting to cause a stir, I politely obeyed that last rule. But my obedience came with a price, I would not be able to read all the breaking news and Tweets from reporters covering the major announcement.

My tour ended around 11:00 am. Naturally, the first thing I did was turn my phone on and check Twitter to see what had been written about the announcement. As I had expected, based on numerous reports both yesterday and earlier this morning, the President had nominated Solicitor General Elena Kagan to replace the retiring Justice John Paul Stevens at the end of the summer. The next thing I did was check my inbox for press releases. Not surprisingly, I had already received more than a few.

Now, I don't pretend to be a Supreme Court expert -- I'll leave that to my colleague -- so I'll spare you my misguided opinions on whether or not Ms. Kagan is qualified to serve on the High Court. However, as someone who covers Congress, I plan on paying close attention to the forthcoming nomination process because I am interested in seeing how it plays out in a political context.

It's no secret that the divide between the two major parties has only grown larger over the past few years. Now, thanks to one-party control of both Houses, the rise of the anti-big government Tea Party movement and a monumental healthcare reform bill that re-ignited a once politically doormant legion of voters nationwide, that divide is arguably at an all-time high.

The first email I read was a lengthy statement on the nomination from Senate Judiciary Committee Chairman Patrick Leahy, a sure-to-be VIP in the months to follow. Near the end of his statement, Leahy said the following:

"Among the most serious constitutional duties entrusted to the Senate is the confirmation of Supreme Court Justices. Americans are looking to Washington to cast aside the political rancor and partisanship that has fueled so many recent debates."

Indeed, driven by such partisan rancor, the battle lines have been definitively drawn on every single substantive issue Congress has worked on lately. From health care, to extending unemployment benefits, to Wall Street reform, the debate has become fairly predictable. In a nutshell it's this: if you're a 'D', you're probably with the President and his administration. If you're an 'R', you're opposed.

Case in point, the following three statements were sent to my inbox from Democrats this morning:

"President Obama has chosen a candidate who will protect and defend the Constitution of the United States. Solicitor General Kagan's outstanding service as a lawyer, professor, public servant, and administrator prepares her for this challenge, and she will come to the bench with a deep knowledge of the law and respect for all individuals."

"Elena Kagan has won the respect and admiration of colleagues on both the left and the right for her legal and policy knowledge and for her success in working with advocates of a wide range of viewpoints. I have no doubt that she will bring the same skills to the Supreme Court, as its unprecedented third female justice, where I know that she will be mindful of the impact of the law on the lives of ordinary Americans."

"It appears that Elena Kagan would bring a great deal of knowledge and real-world experience to the Supreme Court...Elena Kagan’s experience outside courtrooms should not be held against her."

Which three Democrats issued those statements, you ask? I say, does it matter? To me, anyone with a D after their name could've written them. 100% of Democrats (at least in the Senate) will do anything the current President asks or demands of them. During last year's confirmation battle over Sonia Sotomayor, Democrats often chided Republicans, saying they wouldn't even vote to confirm Moses if he had been nominated to serve (they're still using that talking point, by the way). I don't know about that, but let's suppose the President had chosen a candidate completely lacking in qualification. I am willing to bet that most Democrats would have uniformly supported a quick confirmation.

To be fair, when it comes to solidarity, the same can be said of the other side as well. Here are some excerpts of a few emails I received this morning from Republicans.

“President Obama's decision to nominate Elena Kagen to the Supreme Court demonstrates his willingness to sacrifice experience and judicial impartiality for political activism. Despite Ms. Kagen's lack of judicial experience and limited legal practice, it is clear  that she will use her position to push her personal and political agenda."

 “We know that several areas warrant close scrutiny. Ms. Kagan’s lack of judicial experience and short time as Solicitor General, arguing just six cases before the Court, is troubling."

“There is nothing that requires the President to replace a liberal Justice with a liberal; but unfortunately it appears President Obama is doing just that.  Though Kagan has no prior judicial record for the Senate to review, her role as an Obama-insider and senior official in the Administration indicates that she shares the same liberal judicial philosophy as the President and his top advisors."

Again, I'd reveal the names of the Republicans that released these statements, but it's a moot issue. They are Republicans, they CAN'T support anything this administration attempts to do. Especially with mid-terms coming up.

Listen, if you're still not convinced that this is about anything more than D versus R, consider Arlen Specter. As a Republican last year, he voted against confirming Ms. Kagan as Solicitor General. Now, as a Democrat, he says he is open to supporting her confirmation to the Supreme Court. Really? Did she change that much over the past 12 months? Hmmmmmm.

The bottom line is this: In the end, Elena Kagan will be sworn in as our nation's next Supreme Court Justice, probably sometime before the Fall. The question is, will her confirmation process go smoothly? That all depends on whether or not the divide between parties diminishes or grows larger. And based on what I'm seeing so far, I'd say it's safe to expect bumpy conditions this summer.

Supreme Court Justice Stevens Will Retire This Summer

Supreme Court Justice John Paul Stevens announced Friday that he will step down down from the bench this summer.

"Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next term, I shall retire from regular service," said Stevens in a letter sent to the White House.

Stevens, who will turn 90 this month, was the Court's oldest justice and generally considered to be the leader of the Court's liberal wing. He joined the Court in late 1975.

Chief Justice John Roberts applauded Stevens' long legal career.

"Associate Justice John Paul Stevens has earned the gratitude and admiration of the American people," Stevens said in a written statement. "He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

Current Solicitor General Elena Kagan has been rumored as a possible replacement for Stevens.

This will be the second vacancy in the Court since President Barack Obama took office. In 2009, Justice David Souter announced his retirement. His seat was filled by Justice Sonia Sotomayor.

SCOTUS: Pregnancy Payment Not Retroactive

By Jonathan Bronstein, Talk Radio News Service

Global telecommunication corporation AT&T’s pension policy before 1978 was a seniority system, which was achieved through years of service, but women were precluded from gaining as much seniority as their male counterparts because of the time they took on pregnancy leave.

In 1978 Congress passed the Pregnancy Discrimination Act of 1978, and AT&T complied with this new ruling, and adjusted their pension policy accordingly.

After this law came into effect, the question arose as to whether women who already retired would benefit from this new calculation.

Today, in a 7-2 decision, the Supreme Court decided the Title VII, which prevents pregnancy discrimination, does not require AT&T to recalculate the pensions, so AT&T was within its rights to not retroactively pay employees for their loss of pay.

Justice David Souter wrote the majority opinion, and in regard to Title VII, “There is no such clear intent here, indeed, no indication at all that Congress had retroactive application in mind, the evidence points the other way.”

Justices Ruth Bader Ginsberg and John Paul Stevens dissented. Ginsberg wrote that “AT&T committed a current violation of Title VII when it did not totally discontinue reliance upon a pension calculation premised on the notion that pregnancy-based classification display no gender bias.”