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What's Next After Kagan's Confirmation?

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Elena Kagan by Harvard University

The Senate confirmed Elena Kagan's for the Supreme Court by a 63-37 margin Aug. 5, thus overcoming opposition by all but five Senate Republicans and, for those few counting, by the Justice Integrity Project that I lead.

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Over the past few days, several well-meaning friends tried to cheer me up. Thanks, but not really needed.

We knew our project's opposition to her was always a long-shot, without any powerful allies. So our goals weren't really reliant on vote results. The most important goal was to try to shift, if ever so slightly, some of the debate toward substantive concerns about nominees instead of the party-line hokum at the hearings, amplified by horse-race punditry.

With the Kagan appointment, we're now seeing the ascendancy of a well-credentialed careerist to a lifetime job where it seems likely she'll help further shift constitutional power toward an unaccountable Executive Branch vastly different than one the Framers envisioned.

The Constitution-makers emphasized the duties of the Senate and House, and the vital congressional role in checks and balances. Kagan, 50, a close friend of President Obama and a former top aide to President Clinton, suggests through her writings and other actions that she's comfortable with these dangerous long-term trends.

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Instead of focusing on that growing institutional problem, Senate Republicans trivialized their role by partisan, short-term talking points to stir their base. The Democrats similarly avoided serious scrutiny. Among Democrats, only Nebraska's Ben Nelson dared to violate party-line voting and even then it was for banal reasons, such as the nominee's relatively low popularity in his state.

We can all do better. Our project, for example, is ramping up scrutiny of federal judicial nominees at the trial and appeals court levels. This includes retrospective reviews since, in some instances, we've already seen sweetheart-style confirmation hearings with glaring omissions in questioning nominees who turn out to be terribly unfair judges. Where's the accountability for such Senate mistakes?

Let's look at the House process, also. The House has the responsibility under the Constitution to initiate impeachment actions when warranted, but typically takes an extremely timid approach even to preliminary oversight. The recent cases tend to stem from a clear-cut conviction for a largely private misdeed not scrutiny for a pattern of potentially corrupt dealings that could have far more serious consequences for the public.

We plan to shine a light on appalling situations, with hope that you as readers will share our concerns. The Framers, in their wisdom, avoided a statute of limitations on impeachment actions. So should the court of public opinion.

Early in my career as a newspaper reporter, I twice published stories that cost federal judges their jobs, although neither was a presidential appointee with a lifetime post. But each was highly respected, well-entrenched and quietly operating outside what were acceptable bounds of the time (although the misdeeds seem to me in retrospect fairly modest by today's lowered standards).

Researching the specifics was a professionally risky and otherwise challenging, of course. But what I most recall was the reaction afterward from remaining judges.

They liked the stories, a couple of the most eminent told me privately. They wanted their profession to be honorable, and understood that it sometimes takes an outsider to initiate necessary questions. My news organizations (there were two) and I were like an office's daily cleaning crew, occasionally creating a temporary disruption in a routine and mostly unremarkable function.

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By this anecdote, I don't mean to suggest that Kagan has any potentially career-ending secret that I've researched and want to expose. Instead, my point is that oversight procedures need to be aggressive on a more routine basis, while hopefully fair-minded.

In Kagan's situation, a few on both the right and left have suggested that her expansionist view of presidential power to fight terror threats may stem from a supposedly secret family relationship to conservative scholars Donald Kagan and his two sons, Robert and Frederick Kagan. The three male Kagans have been opinion-leaders among those advocating much-increased U.S. military presence in the Mideast wars and for more U.S. security against domestic terrorism threats.

This speculation about a potentially hidden family relationship involves a variety of coincidences. Among them, the first names "Robert" and "Elena" are in each family tree, and standard biographical sources are elusive on certain family details.

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Andrew Kreig is an investigative reporter, attorney, author, business strategist, radio host, and longtime non-profit executive based in Washington, DC. His most recent book is "Presidential Puppetry: Obama, Romney and Their Masters," the (more...)

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