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Jonathan Chait of the New Republic on Elena Kagan’s prospects

Tuesday, May 11, 2010
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HH: Time now to be joined by one of our favorite lefties, Jonathan Chait of the New Republic, www.tnr.com. And you’ll find Jonathan’s always interesting blog. Jon, I want to talk to you about Elena Kagan, but I’ve got to start by saying over at the blog at this hour, you’ve got the new anti-Rob Portman ad up with the shirt off my back guy. And do you really want to suggest that person for person, the people of Cleveland are in less shape than the people of Detroit?

JC: No, I want to say that person for person, the people of Ohio are just a bunch of, you know, crude, ignorant Buckeyes, basically.

HH: Because I’m going to say, I would take the pound for pound challenge, Cleveland vs. Detroit, any day.

JC: Oh, no, I’m sure, you know, we’ve got some heavy folks in Michigan. There’s no doubt about that, but you know, you’re, you know, people are wearing shoes, they’re wearing shirts in public. It’s a part of the United States of America which I wouldn’t say about Ohio.

HH: All right, so we’re coming to D.C. next week, 1260, beginning Monday, three hours a day, to illuminate the Beltway. I hope you’re going to be joining us on a regular basis once we invade D.C. Land proper.

JC: I hope so, too. You know, I think I’ve got a lot to add to your show, not just political commentary, but I could, you know, do some singing, some soft shoe, all kinds of entertainment.

HH: We’re looking forward to your annual predictions before the Ohio State-Michigan game. That’s what I’m really…all right, Jonathan, let’s get to Elena Kagan. I’m one of those conservatives who think she’s awfully qualified to be on the United States Supreme Court, absent something showing up. And you’re trouble by people like Charles Fried and me, and I’m sure Ken Starr and Paul Clement, and everyone else who kind of is around the world of Con law, or teaches it. They all respect Dean Kagan, now Solicitor General Kagan.

JC: Yeah.

HH: Why does this worry you?

JC: It doesn’t.

HH: I read that in your blog post, you say this never turns out well, because Republicans never support you anyway.

JC: Oh, no, I was sort of making a political argument. And what I was saying is that you know, I’m pretty sold on her substantively as a jurist, but I think politically, Obama was making the calculation that you’ve got, like you said, a lot of conservative elites supporting her, so it should be an easy confirmation fight, which I think they want to avoid a protracted fight. They want to talk about the economy, and financial regulation. But I don’t think they’re going to get a lot of Republican support. What I argued is that you know, the support of a handful of Republican and/or conservative elites in the face of a riled-up conservative base isn’t worth much. And what we’ve seen in the last year hasn’t had, that support tends to melt away pretty quickly, and that’s what I think you’ll see. I think Republicans who people are counting on voting for her, are not going to vote for her.

HH: Well, let me ask you this question.

JC: Yeah.

HH: If I was in the United States Senate, and that’s never going to happen, I would sing her praises as a Constitutional scholar. I would say she’s extraordinarily well-qualified by virtue of having been the tenth justice for even a year and a half, and an associate counsel. And then I’d vote against her, because I don’t believe her judicial philosophy is appropriate.

JC: Right.

HH: Do you think that’s a credible position for people to take?

JC: Yeah, I think there are lots, and honestly, I think there are lots of ways to look at the sort of ‘what kind of justice’ you have any inclinations for. I think you could make a credible argument that you know, you don’t have any duty to support, to vote for anyone whose philosophy you disagree with, or you could say the president deserves wide latitude, and you should support anyone who is qualified or doesn’t have a lot of red flags. I think those are both pretty coherent arguments. And you know, I don’t actually have a real strong view between one and the other. I think they both have a certain logic to them.

HH: Yeah, because I think you’ll end up seeing a lot of people treat her with great respect, and then vote against her by virtue of the fact that they’re afraid that she’ll tip the Court. But I do want to ask you about the left, Jonathan Chait…

JC: Yeah.

HH: …because I suspect, from my time in the White House Counsel’s Office, when it was past practice that the Counsel’s Office reviewed every piece of legislation, and prepared a memo on it for the president, that there are a lot of memos in the Clinton White House files by Elena Kagan on things like the Defense Of Marriage Act…

JC: Yup.

HH: …things like surveillance after Oklahoma City. Maybe she’d moved on to domestic policy for Kosovo bombing, but they may have asked her anyway.

JC: And partial birth abortion.

HH: Yeah.

JC: That’s one of those that’s actually come up and has caused some grief.

HH: So what happens when a DOMA memo comes out and Elena Kagan’s on there saying you know, this is Constitutional. Does that fracture the left’s support of her?

JC: I think it already has fractured the left’s support. I think you know, basically anyone who has had any complaint with Obama is already kind of piping up about Kagan, and I think you’ll see that circle kind of expand more. Will it actually result in people in the Senate voting no? I doubt it, but you know, I agree, this isn’t going to really endear him to the left.

HH: Now in terms of the obligation of the Clinton White House files to be brought forward, what do you think? They had to be produced for Chief Justice Roberts, his White House Counsel days.

JC: Yeah.

HH: Do you think that they ought to be produced for Elena Kagan?

JC: You know, I’ve never thought about that before, but if what you’re saying is right, and there’s nothing I’m missing, if they did it for Roberts for the same job, they should do it for Kagan, as far as I can see.

HH: Yeah, they did. In fact, I got a call during that period of time telling me to be aware that all the Counsel’s Office papers that the Chief Justice now had been involved in then would be released to the public.

JC: Yeah.

HH: But Arlen Specter said he’s subpoena them if they didn’t come. Should Patrick Leahy subpoena those?

JC: I don’t know. Is there any suggestion that they won’t be produced? Is anyone resisting?

HH: Yes. Already, there was an intimation from Vice President Biden’s Ron Klain.

JC: Klain.

HH: Klain, we’ll wait and see what they ask for, and then we’ll see what we give them. And obviously, they don’t want to do this. The paper trail is enormous once you get into the files of the White House, Jonathan Chait.

JC: Right, right. No, yeah, agreed. And you know, you’re right. This has caused problems with the left, and it will continue to do so. I mean, the distinction they’re going to want to draw, which I think is a pretty legitimate one, is that in that job, you’re just advocating for the government’s position. You’re not deciding the government’s position. And aside from some monstrously awful position where you should feel the need to resign, but I don’t think there are positions like that.

HH: Well often, though, you’ll get dueling banjos in the Counsel’s Office. You’ll get one lawyer saying I don’t think DOMA’s Constitutional, or I don’t think welfare reform is Constitutional for the following reasons, and another one will say I disagree. I think it’s Constitutional for this reason. They’re both in the files, and so those are actually very telling expressions of legal analysis, but they are pre-decisional.

JC: Yeah.

HH: Should they come out?

JC: I would think so. I mean, maybe someone will come out with an argument for why they shouldn’t that would be persuasive, but my off the cuff response is yes.

HH: All right, last question, do you expect she’ll be confirmed before August?

JC: Oh, gosh. I don’t know. I don’t really want to go on the record, because I have at least a 49% chance of being wrong. Yes.

HH: Oh, okay. So you’re feeling pretty confident about this?

JC: Exactly. Yeah, I’m staking my life on it.

HH: (laughing) Jonathan Chait of the New Republic, thank you. www.tnr.com.

End of interview.

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