Tuesday, May 11, 2010

The Kaganing

WASHINGTON -- President Barack Obama on Monday nominated Solicitor General Elena Kagan to the Supreme Court, declaring she would demonstrate the same independence, integrity and passion for the law exhibited by retiring Justice John Paul Stevens.

If confirmed by the Senate, Kagan would become the third woman on the high court. At 50, she is relatively young for the lifetime post and could help shape the high court's decisions for decades.
I'm a big fan of Supreme Court nomination hysteria, mainly cause I don't know that much about the law and it tends to bring out a special kind of stupid in our political media.

Unlike the last time around, we can add a third element, one where you have very serious concerns about the person who the President nominated, and there's about a 99% that she is easily confirmed. Reading people's opinions of Kagan, you seriously can't help but get worried.

Glenn Greenwald:
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted: "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by "the Right," I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
. . .

First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President's party supports? As Goldstein wrote of Kagan:

Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.

Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?

Everyone who knows Elena Kagan says she's a great gal. This is deemed to be a huge asset because she will supposedly charm Anthony Kennedy into doing her bidding and then the liberals will have a 5-4 majority. Strangely, though, you can't find anyone who knows what her views on the law, culture, society, morality, policy are. I suppose it's possible that she has none, but that's unlikely. You really can't reach her age without forming some opinions about the world and you can't reach her level without having any brains. So, it's likely that she's just been very, very careful not to let anyone know what she really thinks in anticipation of this day.

The thing I'm hearing the most is that she and Obama are very much alike and that they have a strong personal relationship. So, if you like Obama's worldview and governing style, you'll like Kagan. I would expect a lot of split-the-baby opinions --- and we'd best keep our hopes up that Anthony Kennedy is a lot easier to charm than the Republican congress has been.
These descriptions make her sound the Supreme Court Nominee version of Hillary Clinton, someone who has built their entire professional career around one day facing a Senate confirmation battle. Even her defenders like Lawrence Lessig seem to mostly cite their personal relationships with her, which while nice, isn't much of an argument for those of us who aren't lucky enough to be her friend.

Digby's point about the similarities between her worldview and Obamas' makes sense to me, and frankly leaves me more concerned than ever. Obama's governing style of "ending age old left-right debates" makes me want to drive my head through a wall, not sure how that translates to the Supreme Court but hopefully it doesn't mean that she would get constantly out maneuvered by the opposition as we've seen far too many times during the Obama Administration.

The main concern here is that while Bush nominated hard line right wingers to the court, we are nominating people that conservatives are supporting because they think it's "the best they can hope for". Regardless of anything else Greenwald points out that this probably leaves the court further to the right than it was before, after the election of a Democratic President. Depressing.

The main mistake that people make in analyzing this pick is the same mistake people make constantly with Obama. Even with mountains of evidence to the contrary, people want to believe that Obama is a progressive and anything he does is to help progressives no matter how much you have to make shit up and distort reality to think so. Right after the election when people (very smart people, I should add) were claiming that Obama nominated a bunch of centrists to govern as progressives, I wrote this:
And as for Kuttner's(and others) argument about Obama's economic team secretly executing a progressive policy, I would be lying if I didn't see it as anything other than moderately insane.

I say this knowing that plenty of people who I greatly respect believe this to be true, but having followed Barack Obama's career and economic advisers for some time, they are making a leap that I'm just not comfortable making. Barack Obama's economic policies will be tremendously better than anything we've seen in some time (this speech is a great start), but people need to be realistic with their expectations. If he's had people like Summers, Rubin, Furman, Goolsbee as his closest economic advisers with very little progressive economic representation during his time in the senate and throughout his presidential campaign, then it is more than likely that he believes in their economic philosophy.
. . .
But to think that somehow Obama nominated a bunch of center right economists to carry out an amazingly progressive economic agenda that even Obama himself hasn't mentioned or committed to seems a bit off the deep end to me.
That same line of thinking can be applied to this supreme court nomination. For all the bending over backwards to claim that Kagan is going to secretly become a liberal stalwart once on the Supreme Court, I think explaining her nomination is far simpler. Obama nominated her not because he thought Diane Wood would be too hard to confirm, but because he thinks Elana Kagan is the best choice to be a Supreme Court Justice. As Greenwald says, she seems to share many of the same traits as Obama, especially related to courting conservatives and attempting to forge consensus. That type of shit may infuriate me, but people need to give Obama a bit more credit than to think he's screwing up his own supreme court pick by nominating the most conservative of his potential choices.

Deep thought: Obama is a very smart person, and he wanted to nominate Kagan BECAUSE of her career as a moderate, not in spite of it. He's not an idiot, he just has different values than the ones you projected on to him.

With all this said, I'm pretty sure I'm going to boycott cable news until this nomination fight is over. For one, it's fairly depressing because a nominee that I'm less than thrilled about is just about a sure thing to be confirmed and will most likely move the court to the right. Secondly, the RNC put out a press release criticizing Kagan for saying that slavery was a bad thing (no seriously, they did). When I said that supreme court nominations bring out the worst in everyone I honestly didn't think supporting slavery would be on the table, but there you go.

It's going to be a loooooooonnnngg couple of months.


  1. I plan on posting a Special Edition Scotuswatch about Kagan

  2. @rb: Nice, I look forward to hearing what someone who understands this stuff thinks.