Based on what you know, would you vote to confirm Elena Kagan?
About The Author

BooMan
Martin Longman a contributing editor at the Washington Monthly. He is also the founder of Booman Tribune and Progress Pond. He has a degree in philosophy from Western Michigan University.
31 Comments
Recent Posts
- Day 28: Democracy Dies In Darkness
- Day 26: People Discover That American Fascists Like German Fascists
- Day 25: The Fascist Regime Comes for the Federal Prosecutors
- Day 23: The Fascist Regime and House Budget Committee Are Coming for Medicaid
- Day 22: The Fascist Regime Destabilizes the Jordanian Monarchy
Larry Lessig assuaged some of my fears, but I wouldn’t know until the confirmation hearings.
It’s instructive to look at the list of Republican members of the Judiciary committee and consider whether a single one of them has any allegiance to the Constitution at all or a shred of loyalty to the Republic.
Answer: NO.
It’s not like the Senate would confirm anyone better, even if Obama would nominate. So put her in and move on.
The question is now behind us. Although many liberals would have preferred an established liberal judge like Diane Wood, it is not to be. Voting against Kagan is prohibited. We can only hope that Obama and the White House know more than we do, but are just not leaking it, and I’m not talking about Kagan’s sexuality.
Obama must know that if he selects a bad apple, a turncoat, it will affect our laws for generations to come. The Roberts-Scalia-Alito-Thomas coalition will just have its way. And that cannot come to pass.
Any former Clinton policy adviser during his second term would be an outright conservative by any other country’s standards, or by America’s standards 25 years ago.
“Might as well take what we can get” is cold comfort when Kagan could be serving until 2050.
I disagree. Just because that person is a political advisor to Clinton doesn’t make them conservative, it just makes them a political advisor on the best path forward to pass what they could and how best to do it.
If I were hired by the Clinton administration, I’d still hold the same views that I have now, but I would advise him differently than my ideological leanings.
This argument always confuses me. What’s the alternative to “take what we can get”? Not take what we can get?
Get someone better.
However, the argument is that’s not going to happen. Several other people have made the argument that politically, Obama will not be able to nominate anyone more liberal. Why progressives choose not to fight for that particular hill, I do not know.
Replacing a liberal justice with “someone who’s as good as we’re going to get” with the Alito-Roberts-Scalia-Thomas bloc out there? Not thrilled about that particular plan is all.
I’d have to take Specter’s example, and vote “Not Disproven.” Given Kagan’s writing about the confirmation process, it’ll be difficult for her to avoid the substantive inquiry that she endorses.
In the meantime, that article encouraged me on a few points: she repeatedly called Ginsberg and Breyer “moderates”, she referred to the judicial activism of Republicans, and she took digs at Thomas and Scalia:
“I’d have to take Specter’s example, and vote “Not Disproven.” Given Kagan’s writing about the confirmation process, it’ll be difficult for her to avoid the substantive inquiry that she endorses.”
There is ZERO chance of a “substantive inquiry”. The Republicans are not interested in that sort of thing.
What blows me away about all the people who want a serious Senate hearing is that the very idea is monstrously anti-contextual. It’s an echo of that insane collegiality that Democratic Senators keep prizing long after Bob Dole put a fork in it. The Republicans are attempting to institute a putsch against representative government and have been working on it for 30 years. Why people want to pretend otherwise eludes me.
I don’t know where you’re coming from.
Assuming that Republicans aren’t going to filibuster Kagan, they have a political motive to make the judiciary an election issue, and another one to diminish the credibility of liberals on the Court during the confirmation process. They also want to show their constituents that they’ll stand up against “liberal activism.”
They have two possible methods – assassinate her character, and portray her as a liberal activist. The latter requires substantive inquiry.
The Bork hearings, as Kagan writes, were a model for substantive inquiry. The context for them was partisanship, not collegiality. Recently, a great example of collegiality was how Senators on both sides of the aisle allowed Roberts and Alito to pass without pressing them on their legal philosophy or interpretation of the Constitution. Contrary to what you say, substantive inquiry has nothing to do with collegiality.
Kagan’s article is very interesting. I recommend reading it.
“They have two possible methods – assassinate her character, and portray her as a liberal activist. The latter requires substantive inquiry.”
Don’t be silly. If you think Orrin Hatch can make a substantive question or even deliver one, I have to ask what you are drinking. And he’s the intellectual heavyweight of the Republican side. All they can do is ask her statement/questions designed by Frank Luntz to elicit catch phrases or fodder for fake scandals.
“Substantive inquiry” isn’t a matter of intellectual prowess, it’s an inquiry about …
oh, never mind.
Because she’s a smart, hard working, knowledgeable protege of Thurgood Marshall and has been a solid Democrat for decades?
The crap the whiners blabber about, to wit, “I don’t know how she’ll vote!” is just whiner bullshit. We don’t know how any appointee will vote. Since any candidate is a roll of the dice, I have no problem rolling them on a person who fits the above description.
I can appreciate how people who do little other than complain about every last thing Obama does would feel differently, of course.
We don’t know how any appointee will vote.
That’s just bullshit. Did you have any doubt how Roberts or Alito would vote? A lot of people on the left knew exactly how Alito and Roberts would vote(despite Roberts “ball and strikes” bullshit)Why do you think the wingnuts hated Harriet Miers? Because her writing showed even a hint of waffling(See Laura Bush last week).
Agreed. The right didn’t like Miers because it was very cloudy as to where she would be voting, especially on abortion; hell, she could be pro-choice.
People using that claim are really grasping at straws.
No it isn’t. We knew how Alito and Roberts would vote more by their being appointed by a wingnut asshole, and by the hysteria among his fellow wingnuts, than by what we knew of them before the nomination. But even granting them as exceptions, the fact remains that if Eisenhower had known how Warren would turn out, or Nixon Burger and Powell, or Daddy Bush Souter, Ford Stevens, or even Reagan the odious O’Connor and pathetic Kennedy, none of them would be on the court.
And let’s not forget that Roberts literally committed perjury before the Congressional committee when he claimed to be guided by established law and precedent. If everybody knew how he’d vote, why did he have to go all criminal?
You mean like how people “knew” how Souter would vote? Or numerous others?
Pro tip: Guessing, even educated guessing, is not knowledge.
Why ever not? The difference between a Justice Kagan and a Justice Duncan Kennedy or Elizabeth Warren, e.g. pales in comparison between any of them and the left-most justice — Anthony Kennedy — of the present majority.
The notion that appointing her to the court is going to change it from 5-4 to 6-3 is risible. Even the most legendary pigs-in-pokes (Warren, White, Souter) didn’t cross over such a distance.
Yes. She was the short-lister I least wanted to see get the nod, but she’ll be OK. There will probably be times when I cringe at some of her terrorism/liberty balancing, but she’s smart, informed, and intellectually curious — a combination that’s deadly to wingnut ideology. I’m persuaded by colleagues like Lessig, and by her lifelong hero-worship of Thurgood Marshall, that any surprises are much more likely to be on the good side.
Of course vote for her. We want to replace a Gerald Ford nominee who turned liberal with someone to the left of Michael Moore? C’mon. Obama is showing again and again that he’s interested in the Democrats being the party of the middle, not of the left. It makes the Republicans more and more fringy. He keeps taking away their arguments.
Think about it. He was portrayed as a commie, liberal, socialist, Muslim, whatever. And when people see him and hear him, they see a reasonable guy working hard. Now on Kagan the right will try to portray her as too liberal, but the public won’t buy it. They didn’t buy the racist Latina story-line with Sotomayor. This is part of a grander strategy of claiming the broad middle.
I will say, however, that the best thing for Elena Kagan’s confirmation are the attacks from the left. Remember the enthusiasm from the left on expanding Medicare? It didn’t take long of Joe Lieberman to run away from that one. So, lefties, keep worrying and complaining — and you’ll end up with a Justice Kagan who will vote like those bad Republicans like Stevens and Souter.
In the history of the court, there is much more movement of justices from conservative positions to liberal/progressive ones. Hardly any history that I can think of where a liberal justice turned more conservative. I still have some hope for Roberts and Alito as they get worked over by their rather youngish wives and growing kids. Maybe they’ll “see the light.” Here’s hoping!
That’s why I don’t need a proven liberal on the court. I think any intelligent, aware, and informed nominee will tilt leftward when they are free to weigh real-life questions. Knowing a little more about Kagan, and the impression she’s made on people I tend to trust, I’ve gone from deep disappointment to surprising optimism on the kind of justice she’ll turn out to be.
I wouldn’t waste any hope on Alito or Roberts though. They meet none of the criteria above. They were born to disgrace the highest court.
This is part of a grander strategy of claiming the broad middle.
Broad middle of what? Shitting on positions that a majority of people like(public option)?
Broad middle of the electorate. Of the American people. I always thought that progressives thought that Supreme Court justices should be smart, honorable, even-tempered, fair. That they should be able to think big and deep. But since Bork the “ends” matter rather than the “means.” I’m ashamed to say that I think the democrats are partly to blame for this. They were unrelenting in their attacks on Bork who, admittedly, was quite conservative in his views. But he was bright, had a position he could reasonably justify. As I watched that years ago, I didn’t like Bork, I remember, but I thought he should have been confirmed. Why? Because he met the criteria that I believed in (stated above) as qualifications for the court. And the focus on how he would vote rather than on how he would reason — that struck me as wrong-headed. It has proved poisonous to the process.
So I believe Obama believes that you don’t do payback in the tit-for-tat. Instead you go back to finding smart, dedicated people who you believe will bring wisdom to the court. And he trusts that the American people want that too.
Actually, Bork was utterly full of shit and was and is a pompous blowhard not a lot smarter than some Fox news anchor.
His whole originalist schtick was grossly intellectually dishonest.
Yes. I’m not enthusiastic about it though because she doesn’t seem like a progressive. Or the type of firebrand liberal I’d like to see placed on the court. But in this political climate all I can ask is that you’re not crazy or a zealot. I tend to think liberalism has better arguments because reality always intercedes. So if she’s smart and open to different arguments, and Obama trusts her, then she might not be the justice I want, but she’ll be a justice who, by and large, I’ll agree with based on the foundation of her arguments. I hate to put so much stock in Obama’s judgment but I’m just being honest. I’ll admit that it’s not that great of a reason though and if she was nominated by Bush, I’ll probably be skeptical.
I really don’t give a damn about her sexuality. I don’t wanna know if Scalia has sex. Mental image I’d rather avoid. Same with Kagan.
Yes.
No, I wouldn’t vote for her.
yes
Kagan is too much for me to get a read on. Sotomayor was easy, and I liked her story. Kagan is much harder to digest, so in this instance I’ll trust the President and go with his nominee.
Yes, with no hesitation at all. I believe she will prove to be an excellent Supreme Court justice.