It’s not a big surprise that Obama selected Elena Kagan to be his nominee to replace John Paul Stevens on the Supreme Court, but it is a little bit disappointing. Glenn Greenwald has been on a rampage against Kagan, and he makes many strong arguments against her nomination. The strongest argument he’s made is that we don’t know a whole lot about her views because she has never been a judge and she has been pretty circumspect about her judicial philosophy. Basically, Obama is asking us to trust his judgment, because we don’t have a lot to go on in forming our own opinions. I encourage you to look at Greenwald’s arguments, but remember, there is a potential upside, too.
If she is confirmed, the court will have three women for the first time in its history. She’ll be the first Justice to serve without first being a judge since William Rehnquist. I think that’s a positive. She’s only fifty years old, so she could easily serve for over thirty years.
Having said that, I am not excited by this pick and I share some of Greenwald’s concerns about the court actually moving to the right a bit on its interpretation of Executive power. I wanted a pick I could support wholeheartedly, and I didn’t get it.
I do want to say that I am beginning to cringe whenever I find myself agreeing with Greenwald or Hamsher because I think the Establishment is inclined to do the opposite of whatever they say. I didn’t want Kagan, but watching Greenwald savage her made me feel like she was more and more likely to be the pick. I thought to myself ‘Good point, but please let someone else make that argument.’
And, while I share Greenwald’s anxiety about Kagan, I think she’ll probably be an excellent Justice. The problem is, I can’t be sure.
But that’s just the problem. Kagan is establishment, while most Democrats are anti-establishment. Or at least don’t look very highly upon it(with good reason). I mean, look at the defense the Obama White House offered. They tried to make a big deal that lots of people were offered jobs at Harvard Law while Kagan was head of the place. There just aren’t very many good arguments in favor of her. You are right. It’s Obama saying “trust me”. And can we afford that? I say no. As Howie Klein said in a Twitter post: Why would progressives defend her from Republican attacks? We/They have no dog in this fight(so to speak).
Which Democrats? The Democratic Party is a big tent party. Progressives sometimes harbor the illusion that they are the Democratic base. At best they are 40% of the Democratic base, but they are so geographically concentrated in a minority of “blue states” that the general tenor of the Democratic Party is that of an establishment party. It’s just a more diverse establishment than that of the Republican Party.
Still, the Final Four were apparently Kagan, Wood, Garland, and Sydney Thomas. Wood took herself out of the running, so Kagan looks like the most liberal of the remaining three. She’s a mystery package, but not necessarily a threatening one. For me, her biggest minus might be that she worked for Clinton.
It’s like you’re saying Greenwald is a DFH.
How about those of us who actually believe he’s right.
He could have picked an actual progressive.
I’m disappointed, and I don’t give a shyt if the GOP rips her apart.
So, we’ll have a bruising fight for someone who is a ‘ meh’ at best.
I’m not saying that Greenwald is a DFH but I am saying that the White House has had more than enough of his criticism and that their first inclination is to pee in his Wheaties.
that’s a pretty puerile way of doing business, wouldn’t you say? So speaking truth to power is all of a sudden out of line? I’ll file that away for later.
greenwald’s criticisms have been right on. truth hurts.
No, it’s not out of line.
I’m saying that I cringe when he advocates something I agree with because he has negative credibility with the people he’s trying to convince.
It’s like having a great lawyer represent you, but the judge despises him.
really has Greenwald on their radar. I mean, I read him every day, but I’d think there are 100 people in line ahead of Greenwald who the WH would have enough of a personal animosity to matter to them, and most of them work in the Capitol building.
Yep. Number 1 in line appears to be Mike Allen of Politico. Not bad access for the son of an Orange County, California John Birch Society nutcake.
The court’s just too far to the right for this kind of gamble. Maybe she’ll end up being like David Souter, but I just don’t know. I also couldn’t care less about serving for Goldman Sachs, but it presents a problem when we’re trying to pass financial regulations and reform. So I see two problems:
a.) I don’t know where she stands on major issues. I doubt she’s pro-life, but how are we supposed to know that? It would be the ultimate irony to eventually have Roe v. Wade overturned based on the appointment of a supposed liberal president. I don’t think Obama would risk this, considering abortion is the only issue that I agree with him on 100%. Whenever people called him the most liberal in the Senate, it was laughable; whenever they called him the most pro-choice, I thought it was plausible. However, as you said, we’re being forced to trust him. I don’t trust any pols, not even Dennis Kucinich. He’s asking too much of us.
b.) She’s going to provide a lot of fodder for the right-wing when we could have avoided such a thing happening with a more liberal person whose record is clear. Here’s what she said in 1995:
This is going to come back to haunt her. Typically nominees never answer the questions, directly. Will she set a new precedent of actually answering? And if she doesn’t, we’re still not only being asked to trust the president’s judgment, but the right-wing screeds about hypocrisy will be endless.
We’ll see how the hearings go, but I am not excited about this. There’s too much uncertainty, really. I feel like there’s a good chance that she’d be just as liberal as Stevens, maybe more so. Is that a risk we can take with a court that’s undoubtedly one of the most right-wing courts in America’s history (contextually speaking)? No.
And that’s the point: it is a gamble. Kagan is too risky.
That is the most interesting question about Kagan that I’ve seen thus far.
Consider what happens if she does. A riveting hearing that is full of fireworks.
And if she doesn’t. She can arguably be called a coward for not behaving consistent with her views.
The risk is in the confirmation at the moment. Is Obama counting on Republicans not pushing the question of her views on legal issues?
I can see some awkward moments in Clarence Thomas and Elena Kagan’s futures.
She wasn’t one of my top choices, but I’m hearing some things that seem to balance out the possible negatives. She’s said to idolize Thurgood Marshall, who she clerked for. She would apparently be a reliable ally for gay rights judging by her actions at Harvard. She is being attacked by the right as a flaming liberal.
Per the NYT, Obama said “She believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law….” He emphasized that Ms. Kagan grasps the law’s tangible impact: “That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career”.
That’s the kind of justice I want, more than a kneejerk liberal. Obama knows her well, so I’m inclined to believe him on this point.
Still, I fear she could be too “centrist” on executive privilege, the rights of alleged terrorists, and civil liberties in general. As you say, there’s not much to judge by. Plus, I don’t share America’s worship of the Ivies — enough already. Next time I want somebody from the Midwest or the West.
I can’t think of one single instance where Obama has surprised us with a progressive choice on any nomination or policy issue. I can think of a hundred times when he has erred to the right.
Hilda Solis.
Who, as far as I can tell, has been completely invisible.
Apparently you don’t pay much attention to the labor issues.
Yes. Yes. Yes.
I remain disappointed by POTUS lack of boldness in most areas. Gitmo, environment, financial reform and, yes, health reform.
Absolutely no boldness. Is he a RINO ???
I don’t see how people can say we don’t know anything about her.
We know how she feels about people of color;
a) she does not hire them;
http://coloreddemos.blogspot.com/2010/04/some-questions-about-elena-kagan.html
b) and she participates in ‘roasts’ that make fun of them;
http://www.feministe.us/blog/archives/2010/04/30/the-racist-breeding-grounds-of-harvard-law-school/
Her main claim to fame seems to be that she is well connected, with powerful friends.
Harvard meritocracy. She’s getting on the SCOTUS the same way Bush II got to be POTUS. I expect the same results.
Obama is turning into a rather large disappointment. And my expectations were pretty low. He deserves to lose his majority.
nalbar
(shrug) It has been difficult to tell the difference between self-proclaimed “true progressives” and republicans since around Super Tuesday.
I wholeheartedly agree with this assessment.
I am pretty much in complete agreement with your assessment.
.
Kagan is uniformly regarded as extremely smart, having risen to two of the most prestigious positions in all of law: dean of Harvard Law School and Solicitor General.
In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views. On a closely divided Supreme Court, that is an especially important skill.
Conservatives who she has dealt with respectfully (for example, Charles Fried and former Solicitors General to Republican Presidents) will likely come forward to rebut the claim that she is an extreme liberal.
She would also be only the fourth woman named to the Court in history, and President Obama would have named two. At age 50, she may serve for a quarter century or more, which would likely make her the President’s longest lasting legacy.
The fact that she lacks a significant paper trail means that there is little basis on which to launch attacks against her, and no risk of a bruising Senate fight, much less a filibuster.
BIO
In 2003, she was named the dean of the law school, succeeding Bob Clark, as well as the Charles Hamilton Houston Professor of Law. Her Harvard faculty page is here.
President Obama nominated Kagan to serve as his first Solicitor General, and she was confirmed in 2009 by a vote of 61-31.
On Saturday, we published a very extensive piece on Kagan, discussing both her professional history and claims made for and against her, as well as the breakdown of likely votes in the confirmation process.
Earlier this evening, before the announcement leaked, I discussed at length both the likely confirmation process and the substance of the ten principal issues that will be debated by her defenders and opponents.
Special-edition round-up: Kagan nomination
"But I will not let myself be reduced to silence."
So the big fear is that she’s a reverse Souter who will align with the conservative majority? (Yes, I remember that Souter had judicial experience, but the stealth aspect of the record.)
.
Elena Kagan will almost certainly be asked about her opinion on executive power, an issue that played a key role in U.S. Supreme Court cases during the George W. Bush administration. In a 2001 Harvard Law Review article, Kagan said that the idea of the “unitary executive” expanded under President Clinton. But “I do not espouse the Unitarian position,” Kagan wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”Kagan, Elena, “Presidential Administration,” Harvard Law Review, June 2001.
Kagan’s Notable Statements and Writings
"But I will not let myself be reduced to silence."
This is a more serious issue than the Bush administration’s view of the unitary executive in which Congress and the courts were held not to have authority over the executive.
The question is “Who has the authority to direct the actions of the federal departments and agencies – Congress or the President?” Or both? And what principles should courts follow when they disagree? And is there any difference depending which departments you are talking about? Are departments engaged in national security or foreign affairs somehow more under the “directive authority” of the President than domestic departments?
It sure looks like, from your quote, that Kagan tilts toward Congressional directive authority. The President cannot direct departments to do what Congress has not given them the authority to do.
I would be interested how the “unitary executive” issue came up during the Clinton administration. And in what are Clinton was asserting directive authority. That in itself could provoke an interesting kickoff for a discussion of Kagan’s views.
Frankly, I think we would be better off without another Ivy League product. If Kagan is confirmed, every single justice will have at least one degree from an Ivy, and five justices will have two. (And the other institutions represented – Stanford twice, Georgetown, and Holy Cross – are not much different.) In one way the diversity on the court would go down with Kagan’s appointment, which I don’t think is good. It also sends the message that the best jobs are only open to those who attend a certain set of extremely expensive private schools located at the edges of the continent, a long way from where most Americans grow up. I don’t see how that can be good for the country, either.
Great piece at SCOTUSBlog.
I have to say I’m generally satisfied with this choice.
I would have been more excited with Diane Wood or Leah Ward Sears, but I don’t see how either of them could be confirmed. If Obama consistently disappoints progressives with his appointments and decisions, he also appears consistently to make the most progressive choices he can get past the Senate.
Many of the criticisms of Kagan seem quite shallow to me. She’s argued the administration’s position as Solicitor General – that’s her job. She’s Jewish, a product of the Ivy League and from the northeast – so what? The reaction of the Left to this appointment just looks sour and irrational to me.
The woman has a damned impressive record as a leader and an intellectual. I’m glad the President nominated someone with those qualities, and I’m willing to give her a chance.
Is it too much to ask for a protestant on the court?
Way to much.
If I had my druthers, I’d ask santa for an agnostic.