As it turns out there's a supremely simple method of testing her suitability. Once applied, citizens of any political persuasion will see that her nomination should be rejected outright.
As Solicitor General of the United States, Kagan argued against an appeal to the Supreme Court by former Alabama Governor, Don Siegelman in November, 2009. The Siegelman prosecution is viewed by many as one of the gravest injustices of the modern era, a purely political prosecution initiated by the Gonzales Justice Department.
Forty four former state attorneys general were so concerned that they issued a public petition on Siegelman's behalf in 2007. The petition to the United States House of Representatives urged prompt investigation of the many shady dealings in the Siegelman case, before, during and after his trial. They framed their petition in this simple sentence: "The U.S. justice system should be above reproach." It wasn't.
In 2009, ninety-one former state attorneys general filed a friend of the court brief supporting Siegelman's appeal to the Supreme Court. They argued, "clear legal standards are required to protect individuals from politically-motivated prosecutions based on conduct that is ingrained in our campaign finance system and has always been considered legal." That's a discrete way of saying Siegelman's prosecution and conviction was politically motivated.
Why are former Republican and Democratic attorneys general, top prosecutors, sending petitions of outrage about Siegelman's prosecutors? Has this ever happened before?
A review of the history and facts of the Siegelman case shows that through her support of the Siegelman prosecution, Elena Kagan is entirely unacceptable for any court concerned with the rule of law or the dispensation of justice.
The Siegelman Prosecution
Then Governor Don Siegelman sought his second term as Alabama's governor in 2002. He'd run a credible administration as Alabama's first Democratic governor in eight years. His opponent, Republican Bob Riley, represented the hopes of their party to restore dominance in Alabama. At the end of election night, Siegelman retained his office by just 3200 votes.
But local officials found a "computer glitch" that when corrected took 6300 votes away from Siegelman. The result was changed and Riley barely won the popular vote. The never demonstrated claim was that computerized memory devices used in optical scanner voting machines had malfunctioned.
When Siegelman demanded a recount of the optical scan forms used to generate the vote tally, the request was denied by then Republican Attorney General William Pryor. A recount would have been simple. Just tally the votes as marked on the optical scanner forms. But voting officials refused Siegelman's recount request, citing the state attorney general's advice that a recount would be illegal.
Bob Riley was installed as governor. Two years later, then Alabama Attorney General William Pryor received a recess appointment to the federal bench by George W. Bush.
Some time in 2001, Leura Canary, U.S. Attorney for Alabama's central district, began investigating Alabama politicians. Canary was (and remains) the wife of longtime Republican strategist Bill Canary, a close associate of Karl Rove, who helped build Rove's career.
Siegelman's Enduring Legal Nightmare had begun