The Kagan nomination is proceeding quite predictably. With rare exceptions, the confirmation process is an opportunity for the out-party to remain relevant and to score some points among their base. It is also a chance to marvel at good governance as these often boring rituals are a great lesson in civics.
While not elevated to spectacle (yet) by the 24 hour news cycle, the GOP's repeated criticisms of Elena Kagan for her admiration of Justice Thurgood Marshall is quite illuminating. Why? For once more Conservatives and the GOP show us who they have always been.
Do not misunderstand, I am all for spirited debate about the role of the Constitution and The Courts in American life: These conversations about the balance between freedom, order, personal rights, and State power are healthy and should be encouraged. And while I labor under no illusions that the rabble will become philosopher kings, I do hope (while not holding my breath) that the attention surrounding the nomination process sparks some reflection and civic-mindedness.
However, just as with Rand Paul's misreading of history, Palin and McCain's Herronvolk tinged "real American" populism, and the rise of the Tea Party Glenn Beck enabled brigands, I am always amazed at how some folks revel in being on the wrong side of history. I know that is a lot to expect, but it would be nice if one of the voices on the Right would admit that, "well, maybe, the forces of conservatism were wrong on Civil Rights and racial relations," or that "maybe these 'activist' judges who fought for expanded and full rights for all Americans were onto something..."
Ultimately, the Kagan nomination process is a chance to once more hash out what The Constitution is and ought to be. No easy answers are not be found. But, there are always some big questions to be asked. To point:
Speaking for we the people or Just some people?
Democratic with anti-democratic tendencies or Anti-democratic at its heart and wrapped in a veneer of democracy?
A strong document that is immutable for all time? or A document that is strong precisely because of its ability to change?
A document that should be used to support corporate interests? or A document that should protect the people's interests against all others?
Colorblind? or Color-conscious?
A document written by supermen who were divinely inspired? or A document written by smart people making politically pragmatic choices?
A genius document that was flawed only in its application? or An imperfect document whose genius is that it can be corrected over time?
Written by selfish men who realized that self-interest was both the problem and the solution? or A selfless document, written by generous and brave men who only wanted to serve the common good?