Monday, May 10, 2010

Because I Have To Write About Elena Kagan....

One of the things that is inherent in having a blog, is that there is a faction of the internet audience that believes you must write about what they want to read. So to avoid the "why didn't you write about Kagan" question(s), here you go.

I was trying to put together my thoughts on this nominee, when I ran across them on Norm Pattis' blog. So since we live in a society where the most vocal are those who repeat what their favorite pundit said on TV five minutes ago, let me join in the dumbed down mentality of our country and feign original thought in favor of just reprinting my (some of Norm's) thoughts:

Elena Kagan leaves me as cold as can of processed salmon. Princeton, Oxford, Harvard, a clerkship on the Supreme Court, associate at a megafirm, law professor, dean of Harvard Law School, Solicitor General of the United States. Oh, and did I forget that she writes a mean law review article?

We need a trial lawyer on the Supreme Court, not a judicial tourist. As near as I can tell, Ms. Kagan has never set foot in a courtroom representing a person in need. All she knows about the courts' capacity to change a life is what she has read. She's a surgeon who can only describe a scalpel. In a nation chock full of lawyers who actually know what the courts do by experience, she is a rank outsider. I'd need to send an associate with her to handle a misdemeanor, just to make sure she didn't give the client's rights away.

Why graduate high enough in your class, and you might never have to sit with the hoi polloi and listen to their sorrows. Play your cards just right, and, wham, bam, thank you Sam, you just might get a seat on the Supremes.

Kagan once referred to the confirmation process as insipid and meaningless. I suspect appearing on just such a soulless stage has been the ambition of her professional life. Undoubtedly, she'll soon demonstrate the art of evasion in response to questions put to her by the Senate. Saying nothing is the judicial nominee's stock in trade.

Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.

There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice.

But, I digress. I am bitter because when I go to court tomorrow to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.

I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I got was another harmless error of a choice.

Yeah, what he said.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.

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