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May 9, 2010 10:25 PM   Subscribe

Elena Kagan will be officially nominated to replace John Paul Stevens today, ending weeks of speculation and controversy as to who would replace the retiring Supreme Court Justice. Significant criticism has hounded Kagan throughout the nomination process, as she has never tried a case in court (much like Earl Warren). Many worry that her notable statements and writings do not provide a clear progressive record; some go so far as to claim she is Obama's Harriet Miers.
posted by mek (186 comments total) 2 users marked this as a favorite

 
Anybody who would call the former dean of Harvard Law School Obama's Harriet Miers is a fucking idiot.
posted by Doublewhiskeycokenoice at 10:27 PM on May 9, 2010 [68 favorites]


Not to mention she was confirmed as Solicitor General by the Senate 61-39, unlike Miers who was in a purely appointed position (White House Counsel). I still don't have a firm opinion on this nomination, but she's no Miers.
posted by wildcrdj at 10:33 PM on May 9, 2010 [3 favorites]


Doublewhiskey: the argument made in the last link, which I cannot vouch for as credible or not, says that her scholarship small in amount and weak in content and that she appears to have gotten tenure & then her deanship based not on her academic work but on her administrative skills and perhaps even because of her personal/political connections.
posted by Saxon Kane at 10:36 PM on May 9, 2010


Next!
posted by Afroblanco at 10:38 PM on May 9, 2010


again
posted by edgeways at 10:38 PM on May 9, 2010


Well, this is going to be a shitshow.

The parallels to Miers are actually uncanny - the President picks a close advisor and friend, despite their utter lack of published opinion on any legal issues of note, in the clear presence of more qualified candidates who clearly share the administration's ideological position. (*cough* Diane Wood *cough*).

Earl Warren, God love him, was a highly experienced governor. We need more people from outside appellate courts on the bench. We need more people from more diverse educational backgrounds. Janet Neopolitano would have been an excellent choice in both regards. The dean of the Harvard Law School adds no significant intellectual diversity to the court.
posted by l33tpolicywonk at 10:39 PM on May 9, 2010 [9 favorites]


Is there a constitutional protection to heterosexual marriage that I'm missing in my reading?
posted by pashdown at 10:39 PM on May 9, 2010 [4 favorites]


Lessig weighs in positively.
posted by brewsterkahle at 10:43 PM on May 9, 2010 [4 favorites]


Ok, so going through that article more closely I sort of see what he's getting at, but for the most part he seems to be the one with "no there there." (10/10 for use of cliche by the way there Mr. Campos).

This is great:

Consider that Obama and Kagan joined the Chicago law faculty in the very same year, after both were Harvard Law students and members of the Harvard Law Review. (The difference between a "crony" and a "colleague" is often something of a sociological mystery.)

Hmm...did Kagan ever work for Obama as his personal Lawyer? This would be news to me. Also, I think the effusiveness of the praise ("You're the best Governor ever!") she had for Bush might have colored some people's interpretations. But who knows? It is a sociological mystery.

Also:

This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan's supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation's highest court.

"How will I know if she's a good jurist if I can't litmus test her? The horror!" Then he goes onto bitch about her never being a judge, which is weird because if he had beef with Orrin Hatch he should have just said so.

Basically, that was a bad article and a bad takedown of Kagan using bad analogies.
posted by Doublewhiskeycokenoice at 10:44 PM on May 9, 2010 [1 favorite]


Anybody who would call the former dean of Harvard Law School Obama's Harriet Miers is a fucking idiot.

If the Republicans can effectively block her nomination, especially if they cite her lack of judicial experience as they do so, then the comparison would be not entirely off-base. Kagan has a technically better "pedigree", but that's not really the issue.

I hope she gets the nomination, of course, and if she can become the new Earl Warren, then so fucking be it. However - this is quite possibly going to get ugly. Hopefully "Kagan is a stealth conservative" will be a spreadable meme throughout this situation.
posted by Sticherbeast at 10:44 PM on May 9, 2010


Media Matters provides a list of myths and falsehoods about Elena Kegan.

It's fun to read them now before you see them repeated on Fox tomorrow.
posted by furiousxgeorge at 10:47 PM on May 9, 2010 [11 favorites]


It'd be ugly no matter who the nomination is...
posted by edgeways at 10:47 PM on May 9, 2010 [3 favorites]


Kagan will push the court to the right. It's depressing to watch Obama throw away all the hard work that progressives put in during the campaign.
posted by null terminated at 10:49 PM on May 9, 2010 [7 favorites]


her scholarship small in amount and weak in content

Here's her biblography. She seems to focus on First Amendment issues which is fine by me because I love that stuff. I think she's a pretty good writer, and her position on executive power is more nuanced than people give her credit for. She's no Richard Posner, but Richard Posner's prodigiousness is exactly why people say he can't be on the court. He's written so much that there's too much weird shit to get him through the senate. So I guess we're damned if we do and damned if we don't.
posted by Doublewhiskeycokenoice at 10:51 PM on May 9, 2010


Bill Kristol endorses Kagan. Is there anything else you need to know?
posted by null terminated at 10:55 PM on May 9, 2010 [12 favorites]


It's depressing to watch Obama throw away all the hard work that progressives put in during the campaign. (null terminated)

What about all the hard work put in by moderates who also campaigned for and voted for Obama? He had broad support, and the people who elected him are not all (or even primarily) progressive. While I, and many other progressives, aren't happy with how things have turned out, it's misleading and self-aggrandizing to think that we're the only reason he was elected.
posted by ocherdraco at 10:58 PM on May 9, 2010 [13 favorites]


Kagan will push the court to the right. It's depressing to watch Obama throw away all the hard work that progressives put in during the campaign.

So... list four ways in which you are sure Kagan will push the court right, the fact is we don't know. And that scares some people shitless.

Even the inflammatory tag line to this post is a little off base as, indeed, there is no constitutional bases for marriage at all.
posted by edgeways at 10:59 PM on May 9, 2010 [1 favorite]


(*cough* Diane Wood *cough*)

Wood had her 60th birthday a week or two ago. Anybody who thinks a 60+ year old is going to be nominated is living in a fantasy world.
posted by Justinian at 11:01 PM on May 9, 2010 [2 favorites]


Doublewhiskeycokenoice: Anybody who would call the former dean of Harvard Law School Obama's Harriet Miers is a fucking idiot.

Slow down.

123tpolicywonk: The parallels to Miers are actually uncanny - the President picks a close advisor and friend, despite their utter lack of published opinion on any legal issues of note, in the clear presence of more qualified candidates who clearly share the administration's ideological position.

The parallels are uncomfortable. I don't get this guy Obama. The last point in particular "in the clear presence of more qualified candidates" is right out of the George W. Bush playbook. (As my brother pointed out Harriet Myers was clearly a decision Bush made himself.)

WTF Obama? Why not pander to your left? What have you done for your base? Not one goddamned thing. Are you afraid that Glenn Beck will call you bad names if you appoint someone solidly liberal? Or do you see value in just being unpredictable?

The dean of the Harvard Law School adds no significant intellectual diversity to the court.

Six Catholics and three Jews. All Harvard or Yale graduates. Not strikes against, but a strange result in a country of 300m people of all backgrounds with some really excellent state universities.
posted by three blind mice at 11:04 PM on May 9, 2010 [25 favorites]


I don't think Kagan is a bad choice, but I think there are betting potential nominees out there or at least equal ones who would be much harder for the republicans to have a hissy fit about. There are legitimate criticisms of Kagan. I don't understand why in this political climate Obama would choose anyone who could pose a problem in the confirmation process.
posted by whoaali at 11:05 PM on May 9, 2010


ocherdraco: it's misleading and self-aggrandizing to think that we're the only reason he was elected.

Are you confusing my comment with someone else's?

edgeways: So... list four ways in which you are sure Kagan will push the court right, the fact is we don't know. And that scares some people shitless.

My main concern is her view on Executive Power and support of the Unitary Executive theory. Also, if Bush got Alito we shouldn't be able to find a single way in which she would make the court more conservative.

This basically comes down to "trust Obama", which I find patronizing and dangerous, considering the Administration's positions on national security issues.
posted by null terminated at 11:07 PM on May 9, 2010 [5 favorites]


Yes Wood is 60 and Sotaymor was 55 at the time of her nomination, and Kagan is 50. I will just repeat what I said last year: William O. Douglas was 40 at the time of his confirmation and Thomas was 43. It would be great if a qualified, liberal 40 year old were nominated and confirmed and then served at least 40 years. But President Obama appears determined to nominate people from the >55 crowd.
posted by mlis at 11:10 PM on May 9, 2010


Also, Obama consistently tries to not upset Republicans, as if he somehow doesn't understand that they'll complain about everything he does to score political points. His tone deafness is shocking and it's disheartening that he doesn't seem to have learned from the health care debate (where he finally got somewhere when he started to fight hard for what he wanted).
posted by null terminated at 11:10 PM on May 9, 2010 [1 favorite]


The last point in particular "in the clear presence of more qualified candidates" is right out of the George W. Bush playbook.

You can name a few clearly more qualified candidates who share the President's ideology and would be at least as easily confirmed as Kagan? Note that qualifications would include such things as age.
posted by Justinian at 11:10 PM on May 9, 2010




What about all the hard work put in by moderates who also campaigned for and voted for Obama? He had broad support, and the people who elected him are not all (or even primarily) progressive. While I, and many other progressives, aren't happy with how things have turned out, it's misleading and self-aggrandizing to think that we're the only reason he was elected.

But moving this Court to the right won't moderate it. It will make it even more astoundingly right wing than it already is. I don't think that's what moderates want, is it?
posted by PhatLobley at 11:13 PM on May 9, 2010 [2 favorites]


Or do you see value in just being unpredictable?

Unpredictable? This choice is many things, but unpredictable is not one of them. People saw this coming even before he nominated Sotomayor. If you continue to expect Obama to be a die-hard leftist, you are going to continue to find him "unpredictable."
posted by one_bean at 11:14 PM on May 9, 2010 [2 favorites]


whoaali: “I don't think Kagan is a bad choice, but I think there are betting potential nominees out there or at least equal ones who would be much harder for the republicans to have a hissy fit about.”

Whatever the concerns about Kagan may be, Republican hissy fits are not one of them. The Republicans will be overjoyed to confirm her. Wasn't Joe Lieberman cackling with glee the other day saying that she's going to turn the tide of the court conservative?
posted by koeselitz at 11:18 PM on May 9, 2010


A ten-year longer term is also ten years extra of potential damage which could be done. Vet, vet, vet.
posted by l33tpolicywonk at 11:19 PM on May 9, 2010


WTF Obama? Why not pander to your left? What have you done for your base? Not one goddamned thing. Are you afraid that Glenn Beck will call you bad names if you appoint someone solidly liberal? Or do you see value in just being unpredictable?

He doesn't agree with his base. He thinks their ideas are wrong. He is a right-wing Democrat.
posted by stammer at 11:22 PM on May 9, 2010 [8 favorites]


PhatLobley, my comment wasn't saying anything about Kagan, just about null terminated's comment about "all the hard work that progressives put in" which ignores the fact that Obama was elected by a broad swath of people, not all of whom are progressives.

You'd be right that I don't want a more conservative Court.
posted by ocherdraco at 11:22 PM on May 9, 2010


He doesn't agree with his base.

Which, amazingly, can be said about most Republican *and* Democratic politicians.

What was it that was said here on MeFi during the election? I believe it was "Hope for Change, Prepare to be Disappointed."
posted by Joey Michaels at 11:28 PM on May 9, 2010


You can name a few clearly more qualified candidates who share the President's ideology and would be at least as easily confirmed as Kagan?

As I've said before: Leah Ward Sears, who's progressive, is a jurisprudential bridge-builder (she's close friends with Clarence Thomas, for crissake!), is only 54 (and, as a bonus, didn't go to Harvard OR Yale!), was the youngest judge named to the Georgia Supreme Court in that state's history, and would be the first black woman on the Supreme Court.

Oh, and all the blather about Kagan having been confirmed 61-39 ignores the fact that 59 of those votes were Democrats and the other two were Collins and Snowe, who have had the whip cracked sharply upon them and are less likely to flip in Obama's favour now.
posted by mightygodking at 11:33 PM on May 9, 2010 [4 favorites]


Sears wouldn't have been a bad choice but Obama wanted someone with non-judicial experience. I honestly don't think that's a bad idea.

I think you underestimate the bullshit that would start being hurled around if Obama nominated a black woman. Would that matter in a perfect world? No. Does it matter in realpolitik? Yes.
posted by Justinian at 11:41 PM on May 9, 2010 [1 favorite]


Also, Obama consistently tries to not upset Republicans, as if he somehow doesn't understand that they'll complain about everything he does to score political points. His tone deafness is shocking and it's disheartening that he doesn't seem to have learned from the health care debate (where he finally got somewhere when he started to fight hard for what he wanted).

But moving this Court to the right won't moderate it. It will make it even more astoundingly right wing than it already is.


But Obama sees himself as a political Kantian, ruling within the Categorical Imperative ("Act only according to that maxim whereby you can at the same time will that it should become a universal law."). I don't mean that his policies follow the Categorical Imperative, but his politics: he believes that there is an ideal way for politicians to behave, and that's how he behaves. Obama seems to believe that he ought to make decisions not based on the current political climate or circumstances, but what is "objectively" the correct decision for American life. Hence his tendency to nominate fairly moderate and apolitical judges. That's why he tends to do the "some on the right think THIS, and some on the left think THIS. That's why I'm going with the middle." Because he wants politicians to represent all of their constituents. Because he thinks that "there are no Red States of America and no Blue States of America, but the United States of America." He looks at the electoral results and sees that about 53% of people voted for him, but about 46% of people voted against him. So he bases his political decisions that are ~3-7% on the left of center for the country that he serves. Because that's how he wants all politicians to act. He looked at the W. Bush presidency and believed that the damage came not from the ideology itself, but the absolute devotion to the ideology. He removes himself from the policy, and thinks about the political actions.

Next time Obama makes a decision about something, ask yourself: "How would I have wanted a Republican to go about making this decision?" Not "whom do I wish a Republican had nominated," but how. You might find Obama a little less unpredictable. He's been pretty clear about this all along: more bipartisanship, change in Washington, stop the bickering, etc. He's a man who more and more seems interested in how politicians make decisions, not the decisions themselves. I suppose in some ways that's the Constitutional Law professor showing through: it's how judges are supposed to make decisions, not based on policy or politics, but based on what the law dictates.

I believe it would be beneficial if all politicians were as circumspect, though when only one person (even the president) is doing it, it rarely results in more leftist policies being enacted.
posted by one_bean at 11:42 PM on May 9, 2010 [66 favorites]


one_bean: What are you basing that on? I've noticed Obama's actions ALSO make perfect sense if he's a Clinton Democrat following a triangulation strategy, and very unwilling to take any action that risks alienating his corporate donors. They also make sense if he's a straight up coward unwilling to get into the political fights needed to effect real change, or if he actually agrees with the core of the Bush administration approach to national security.
posted by Grimgrin at 11:59 PM on May 9, 2010 [12 favorites]


I really was hoping for Hillary.

I really wanted to hear the staccato popping of GOP aneurysms across the AM radio band.
posted by RavinDave at 12:04 AM on May 10, 2010 [2 favorites]


But Obama sees himself as a political Kantian

Another way to put this that makes Obama seem like less of a beautiful philosopher king: Obama considers left-wing and right-wing politics basically indistinguishable. Trade unionists and antiwar activists, for example, are about as bothersome and harmful as Tea Partiers. Any kind of mass activity can only interfere with the technocratic rule of educated professionals like Tim Geithner. The axis of Obama's politics is not equality-privilege, but smart-dumb. This is great if you are part of the political establishment trying to reassert your authority after the walking legitimation crisis of George Bush, but not so good if you are, say, someone who is politically active and left wing, like, oh, an Obama voter.

Obama's genius is in making his loving care of established power structures seem like the fruition of a mass political movement. Hope!
posted by stammer at 12:04 AM on May 10, 2010 [13 favorites]


he's a Clinton Democrat following a triangulation strategy

What are you basing that on? The administration has said nothing at all about triangulation, not even through leaks. It certainly wasn't his strategy during the 2008 election as far as I can tell. What do you suggest changed electorally between November 08 and January 09 that would make him want to triangulate? Because that's when he started appointing totally vanilla and uncontroversial people to his cabinet.

They also make sense if he's a straight up coward unwilling to get into the political fights needed to effect real change

Well, again, that really depends on your definition of "change." If by "change" you thought he was going to bring about a socialist utopia, you were probably going to be disappointed (or thrilled that he's not, depending on your political orientation... or, I guess, terrified that he already has). Obama was deliberately vague on "change" so that liberals could read into it what they wanted. But he tended to follow that with "in tone." In other words, he was unhappy with the process of how Washington went about its business. He spent more than half of his legislative time as U.S. Senator working on transparency initiatives.

or if he actually agrees with the core of the Bush administration approach to national security.

Yeah, as president, he does seem to agree with that core approach. Or at least, having listened to the relevant advisors, he believes that they have offered him the advice that would lead to that decision. It certainly does seem to be a surprising change from earlier statements as a U.S. representative and senator, but he had different constituencies in those roles. When you represent Hyde Park, you can be aggressively anti-war. When you are President, you listen to your Defense Secretary.

Again, he never said "I'm only going to be President of the Blue States of America." That's pretty much all the textual evidence I feel I need to present until you can offer a counter-example.
posted by one_bean at 12:20 AM on May 10, 2010


What are her views on Roe vs. Wade?
posted by cj_ at 12:20 AM on May 10, 2010




Kagan will push the court to the right.

That's probably true, but how much difference does it make?

I mean, IANAL, but isn't a pro-corporate/pro-police/etc 6-3 decision functionally the same as a 5-4 decision?
posted by hamida2242 at 12:21 AM on May 10, 2010 [1 favorite]


What specific cases are people saying she will judge differently than Stevens? She seems like a bit of a partisan hack to me, but a partisan hack on the side of the Democrats will bring needed balance to the court, and will probably rule in the same way as Stevens would anyway.
posted by afu at 12:37 AM on May 10, 2010


What are her views on Roe vs. Wade?

Anyone who tells you that Kagan wants to overturn Roe is selling something.
posted by Doublewhiskeycokenoice at 1:02 AM on May 10, 2010


My feeling is that she is really more liberal than one can prove, which will help her get nominated so she can actually do liberal stuff.

(By liberal I mean...agrees with me. Sorry for the lack of nuance.)
posted by internet fraud detective squad, station number 9 at 1:55 AM on May 10, 2010


Anyone who tells you that Kagan wants to overturn Roe is selling something.

Well... so that means she doesn't? It was an honest question. I know nothing about her, and I spent about 30 minutes googling and all I could find tangentially related was Focus on the Family endorsing the nomination and liberals complaining that she is too conservative.

Sorry if I am way off in allowing that to be a cause for concern, but RvW hangs in a 5-4 balance at the moment. It will only take one new Justice to be anti-choice for a potential challenge to succeed, if I'm not mistaken. I will gladly be corrected if that's not the case.
posted by cj_ at 1:59 AM on May 10, 2010 [1 favorite]


1) Given that Kagan presumably isn't to the right of Kennedy, the court's outcomes won't change much for now. But should someone in the rightward 5 depart and be replaced by a Democratic president, Kagan could become the decisive center if she is indeed to the right of the other 3 members of the left wing. So while the stakes are low(ish) now, they could readily be quite high later on.

2) Regardless of whether you think Obama wants her because it's pragmatics, or because her ideology matches his, the result is similar: her positions will probably be similar to the ones he adopts. That is, somewhere in the rightward 1/3 of the Democratic party. Certainly well to the right of Stevens, anyway. And for those holding out hope that she's a crypto-liberal: has Obama ever surprised us by taking a position to the left of what we expected?

3) In any case, for those of us who fear the court moving to the right, what possible reason is there not to oppose the appointment of someone who might move the court rightward in favor of someone we know would not? It's crazy to support someone whose position we have to guess when there are so many whose positions we know and like. And it shouldn't be just a matter of failing to support her: if we really want a better outcome, she should be actively opposed. When Republicans helped shoot down Miers (not that Kagan is remotely in her league, whatever her weaknesses), it harmed neither Bush nor the court; there's no reason for us not to push the left wing of the Democratic party to do the same here.
posted by chortly at 2:06 AM on May 10, 2010 [2 favorites]


cj: Focus on the Family has not endorsed Kagan. They explicitly oppose her.
posted by mek at 2:10 AM on May 10, 2010 [1 favorite]


Also, for what its worth, it surely says something interesting that even Republicans are looking to paint Obama with Bush's failures. The Oil Spill is "Obama's Katrina." Kagan (before she's even nominated) is "Obama's Harriet Myers."

These are both false comparisons since the problem with Katrina for Bush was his absolute tone deaf response to the crisis and the problem with Harriet Myers was that she was Bush's personal attorney.

I mean, soon we'll have Obama's "Mission Accomplished" moment and, just for balance, Biden's "shooting some dude in the face" moment.
posted by Joey Michaels at 2:35 AM on May 10, 2010 [24 favorites]


I really wanted to hear the staccato popping of GOP aneurysms across the AM radio band.

You're gonna get to hear this explosion anyway. That's the thing. Obama knows whomever he picks he'll get a fight from the right, so why not select someone recognizeably and reliably liberal and get some cheers from the left (who have had little to cheer about with this guy.)

Instead he gets raised eyebrows and a head-scratching "huh" response from the left AND the angry hate speech from the right. Obama picked Sotomayer to immediate praise from an important constituency and now crickets. I mean no one here so far is saying "Fuck yeah, Kagan, fantastic choice".

Also, for what its worth, it surely says something interesting that even Republicans are looking to paint Obama with Bush's failures. The Oil Spill is "Obama's Katrina." Kagan (before she's even nominated) is "Obama's Harriet Myers."

It says nothing interesting at all. Even Republicans have taken to adding the suffix "-gate" to every scandal.
posted by three blind mice at 3:12 AM on May 10, 2010 [2 favorites]


In response to the first comment, how does being the former dean of Harvard Law School qualify someone to be a Supreme Court justice? The two jobs don't seem to have much to do with each other. Law school =/= law.
posted by Jaltcoh at 3:15 AM on May 10, 2010 [1 favorite]


There's a great deal of misperception and misinformation swirling around in this thread. Everyone should really read SCOTUSblog's excellent writeup on Kagan.
posted by EarBucket at 4:04 AM on May 10, 2010 [10 favorites]


Many worry that her notable statements and writings do not provide a clear progressive record

Does her record demonstrate that she has a sharp analytical mind, an inclination to consider all the evidence properly before the Court, and the judgment not to act like an ass? Then STFU and confirm her unanimously.
posted by Inspector.Gadget at 4:35 AM on May 10, 2010 [7 favorites]


If the Republicans can effectively block her nomination...

When have the Republicans been able to effectively do anything since the start of the Administration?

In a venemously hostile partisan environment, with Republicans kept in ideological lockstep and signing loyalty oaths because their biggest donors are pointing a primary challenge at their head, ready and willing to pull the trigger if they get out of line. And you know what? They haven't been able to stop the President from doing whatever the hell he wants. Slow him down a bit, maybe, but he's proven to be able to play the long game better than the Goopers.

This isn't Obama's Harrier Meirers, because Obama isn't Bush.
This isn't Obama's Katrina, because Obama isn't Bush.
This isn't Obama's Waterloo, because Obama isn't Napoleon (or Clinton.)

When the GOP prove themselves capable of doing anything but making themselves look like clowns, wake me up.
posted by Slap*Happy at 4:36 AM on May 10, 2010 [5 favorites]


He shoulda gone with Kucinich.
posted by Salvor Hardin at 4:49 AM on May 10, 2010 [1 favorite]


Media Matters provides a list of myths and falsehoods about Elena Kegan.

Man, it's depressing to see how partisan Mediamatters ended up becoming when Obama took office. How can it be a "Myth" that "Kagan's Goldman Sachs role taints her nomination" -- That's a completely subjective value judgement.

Their response on "Kagan's record shows that she will rubber-stamp war-on-terror policies"

Doesn't actually say anything:
Kagan's article dealt with domestic issues, not national security, and her actions as solicitor general do not show that she would take an expansive view of the president's national security powers. Kagan's article dealt with a president's power to direct administrative agencies and did not claim, as the Bush administration had, that the president had inherent power to act unilaterally on national security matters. Furthermore, Kagan's arguments in favor of the government's national security positions as solicitor general do not indicate that she would take an expansive view of the president's national security powers as a Supreme Court justice. As she has stated, her duty as solicitor general was to represent the federal government in court and defend federal laws whether or not she agreed with them. As a justice, her role would be to decide whether the federal government's actions are justified under the Constitution and federal laws.
In other words, there's no evidence either way about how she would vote, which is the problem. This is what Neel Katyal wrote in 2006 (via. greenwald)
Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.
Since the only way to know what her views are is to talk to her in person, it's important to point out that some of those who have interacted with her, seemed, in the past, to view her as someone with an expansive view of executive power.

But the real problem is zero public information about her views, ever as a judge or as someone advocating for something.
posted by delmoi at 4:55 AM on May 10, 2010 [3 favorites]


What are you basing that on? The administration has said nothing at all about triangulation, not even through leaks. -- one_bean
It's not like the Obama people are big leakers, normally their "leaks" are put out intentionally (maybe by one faction or the other, like with Rahm's "fight" with Holder) in order to affect the public debate. People aren't over there blabbing about what's going on internally.

But that's beside the point. They don't need to talk about it publicly to do it, and you shouldn't assume that because something hasn't been leaked, it hasn't been done. The press is not a perfect window into the inner workings of the Obama administration, not by a long shot.
It certainly wasn't his strategy during the 2008 election as far as I can tell. What do you suggest changed electorally between November 08 and January 09 that would make him want to triangulate? -- one_bean
The fact that he needed to win the democratic nomination? Despite the press coverage, the general election was never in doubt (McCain's poll numbers only dipped into positive territory right after his convention, then dropped back down quickly) There wasn't really any need for him to do anything that would piss off either his base or the republicans.
My feeling is that she is really more liberal than one can prove, which will help her get nominated so she can actually do liberal stuff. -- internet fraud detective
More liberal how?
(By liberal I mean...agrees with me. Sorry for the lack of nuance.) -- internet fraud detective
Oh, that's helpful.

--

About Obama's "Presidential Philosophy", it seems to be mainly about bringing various interest groups to the table and trying to facilitate a compromise. Which isn't a bad idea as far as being effective. But the problem here is that you end up with some pretty corrupt and malicious actors driving policy due to their existing power. You have the people invested in the Bush model on civil liberties "brought to the table" on civil liberties (so no closing gitmo or civilian trials!) You have wallstreet "Brought to the table" on financial reform (bailouts!) Health insurance companies "brought to the table" on HCR, and big oil brought to the table on energy reform (Offshore drilling!)

It's really obnoxious.

On Kagen: It's obvious from the president's actions that he believes that the executive branch should be able to keep going with Bush and Cheney's war on terror B.S. Kagen has been advocating for that stuff in front of the Supreme Court, and while you can say, "that's just her job" it's not like there's anything out there to counterbalance it. And it seems obvious that Obama would nominate someone with his same views.

The question isn't whether "She's a liberal". Plenty of people are "Liberal" and have no problem with Gitmo and indefinite detainment and all that other bullshit. You can believe in executive power and a progressive taxation system at the same time.
posted by delmoi at 4:56 AM on May 10, 2010 [5 favorites]


Like with everything else Obama's done since winning the election, what I feel the most about Kagan is how utterly and totally uninspiring the choice is. Oh look, he nominated the most obvious choice that everyone predicted for a year. She's kinda moderate, and I guess she'll try to keep abortion legal as well as they could. But the big story is how she might reduce the risk of an actual fight.

She'll probably be a decent Justice. Democrats will continue to be fucked in November.
posted by XQUZYPHYR at 5:16 AM on May 10, 2010 [2 favorites]


Jesus Christ, I spend one night in the hospital and this place turns into DailyKos overnight. I absolutely love how everyone is now an expert on Supreme Court jurisprudence and the federal nomination process. No wonder we progressives constantly get shit on, based on these comments your tactical understanding is fast approaching, well, null. Terminated, even. But go ahead and die on this ideological hill if you want. Or the public option. Remember that? Yeah, I thought so. Take your ball, go home and prove the Republicans quote-unquote right again. Sheesh.
posted by joe lisboa at 5:38 AM on May 10, 2010 [4 favorites]


There's a great deal of misperception and misinformation swirling around in this thread. Everyone should really read SCOTUSblog's excellent writeup on Kagan.

But what about our collective axe that is so desperately in need of grinding?
posted by joe lisboa at 5:41 AM on May 10, 2010 [2 favorites]


Kagan rearguing Citizens United at Oyez.org.
posted by enn at 5:41 AM on May 10, 2010


Oh, and all the blather about Kagan having been confirmed 61-39 ignores the fact that 59 of those votes were Democrats and the other two were Collins and Snowe

She was confirmed 61-31. Seven of the votes to confirm were Republicans: Coburn, Collins, Gregg, Hatch, Kyl, Lugar, and Snowe. Of those, Collins, Gregg, Hatch, and Snowe are very likely votes to confirm again this time; Lindsay Graham, who didn't vote on her confirmation, is a probable get this time as well. I suspect Scott Brown's a possibility as well--he's working hard to convince Massachusetts voters he's not a hard-line right-winger.

The Republicans will make a stink at the hearings, as usual, but she'll be confirmed with very little actual difficulty.
posted by EarBucket at 5:59 AM on May 10, 2010 [3 favorites]


It certainly does seem to be a surprising change from earlier statements as a U.S. representative and senator, but he had different constituencies in those roles.

Changing how you feel about executive power once you become president goes back a long way. Thomas Jefferson, for example. Making the Louisiana Purchase was an arguably unconstitutional expansion of executive powers and went against policies Jefferson had held for years.

Democrats will continue to be fucked in November.

I'm not so sure. We're still a long way from November. The economy's getting better, and employment numbers are finally starting to turn around.
posted by kirkaracha at 6:15 AM on May 10, 2010


What are her views on Roe vs. Wade?

The idea that views on this single case ought to be a litmus test for the appointment of a lifetime justice on the Supreme Court is one of the worst things that has ever happened to American political discourse.
posted by modernnomad at 6:26 AM on May 10, 2010 [7 favorites]


Mightygodking called it
posted by The Whelk at 6:38 AM on May 10, 2010


While there are plenty of more important reasons why to support increasing the gender balance of the court, it's interesting that a female appointee will, actuarially speaking, live about a half decade longer than a male appointee. If your goal was to influence the direction of the court as far into the future as possible, why would you ever appoint a male Justice?
posted by Tsuga at 6:39 AM on May 10, 2010


> Changing how you feel about executive power once you become president goes back a long way. Thomas Jefferson,
> for example. Making the Louisiana Purchase was an arguably unconstitutional expansion of executive powers and went
> against policies Jefferson had held for years.

Could it possibly have anything to do with how much more virulently you get attacked once you're in office, not just by same-old-same-old enemies but also by former supporters? If it were suddenly both the tea partiers and the daily kossacks who had their knives out for me, that might just set me daydreaming about some Alien and Sedition Acts of my own (to keep to the Jeffersonian parallel.)
posted by jfuller at 6:48 AM on May 10, 2010


EarBucket We'll see. I think, this close to November and following their failure to block HCR they're going to want to prove to their base that they can shut down that uppity negro and help the Tea Party "take their country back". I predict, and I've got a long track record of being completely wrong in my predictions, that they'll filibuster, at least until the elections.

It's a big high profile thing so they can make all sorts of speeches about how evil and socialist Obama is and how they just can't let him advance his radical anti-American agenda, and unlike most other big high profile issues holding up Kagan's nomination won't hurt their constituents or their reputations like holding up a military spending bill would.

What do the Republicans stand to gain by playing nice? Nothing.

What do they risk by playing nice? The ire of the Tea Party and the various blowhards.

What do they stand to gain by blocking Kagan? Reputation gains from their hard right base.

What do they stand to lose by blocking Kagan? Absolutely nothing.

I can't see an upside to them playing nice, and I can't see a downside to them voting as a bloc to filibuster.
posted by sotonohito at 6:50 AM on May 10, 2010


It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.

In other news, this finalizes the Catholic/Jewish domination of the Court. Now we've got the whole set.
posted by gerryblog at 7:15 AM on May 10, 2010


Oh, and on the subject of Harriet Miers: Kagan is obviously much more accomplished than Miers, but at the same time I can't help but feel that Obama went out of his way to invite the comparison.
posted by gerryblog at 7:18 AM on May 10, 2010


Mightygodking called it

Nope, allen.spaulding called it when Souter announced retirement, named Sotomayor as a probable replacement for him and gave reasons for Kagan taking the SG position.

So allen, who's next in line and who's going to be the new Solicitor General?
posted by Brandon Blatcher at 7:19 AM on May 10, 2010


homunculus: "President Obama's Supreme Court pick is mainly guilty of muting her progressive ideals in the service of ambition"

I'm pretty sure that's what we're saying. This doesn't resonate with me as "good" in any way.
posted by l33tpolicywonk at 7:20 AM on May 10, 2010


Oh, and on the subject of Harriet Miers: Kagan is obviously much more accomplished than Miers, but at the same time I can't help but feel that Obama went out of his way to invite the comparison.

From your link:
Kagan told the Georgetown audience that the [Kennedy] had "a bit of a bad habit," namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was "inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati." Perhaps many advocates know those cases, Kagan said, but "I at any rate did not." She added, "There was a look of panic on my face."
From my recollection of listening to that argument (which I linked above) last year, that's not surprising. She seemed unsettlingly unprepared and overconfident.
posted by enn at 7:29 AM on May 10, 2010


Let's see. The other people whom folks on here wish that Obama had picked instead of Elena Kagan: Leah Ward Sears, Diane Wood, Dennis Kucinich (right!), or unnamed other people who would either (a) be more progressive than Kagan, (b) be less controversial than Kagan, (c) be less like Harriet Miers than Kagan, (d) be less boring than Kagan, or (e) be more in lockstep with Glenn Greenwald than Kagan.

All this goes to show is that no matter whom Obama had nominated, he'd be attacked for it.
posted by blucevalo at 7:44 AM on May 10, 2010 [3 favorites]


I don't know a lot about the Supreme Court, but it seems to me that it would be best to appoint an experienced judge to the highest court in the land. Experience shows, I suppose, that they can do that judgy stuff. In addition, it might be good to select a judge whose background isn't like all the others. Even if you like the Court now, you can have too much of a good thing....
posted by MarshallPoe at 7:46 AM on May 10, 2010


I think the Kucinich nom was a joke, blucevalo. And yes, I think there are a number of people who would be both more progressive than Kagan and less controversial/less like Harriet Miers, and I think those people would be better choices besides. I'm far from a kneejerk Obama basher, but this selection is seriously disappointing EVEN IF Kagan has been hiding her progressive bonafides behind a screen of total political detachment all this time.
posted by gerryblog at 7:48 AM on May 10, 2010


Another good SCOTUSblog piece from February laying out the case for why Obama would nominate Kagan to replace Stevens. I'm not as excited about Kagan as I'd have been about Wood, but she's a very solid pick, and I understand the White House not wanting a bruising battle over this. They want the big fight this summer to be about immigration reform, not abortion.
posted by EarBucket at 8:03 AM on May 10, 2010 [1 favorite]


Experience shows, I suppose, that they can do that judgy stuff.

An experienced judge should be appointed because she can do all that judgy stuff. Check.
posted by blucevalo at 8:09 AM on May 10, 2010 [1 favorite]


Yes, Kucinich was a joke. I love the man, but it would take a very bizarre miracle to get him anywhere near the Supreme Court.

I suppose I should have typed "Kushinish", since my tongue was planted firmly in my cheek at the time.
posted by Salvor Hardin at 8:12 AM on May 10, 2010


You can never really predict how liberal or conservative she will be until she starts deciding cases.
posted by caddis at 8:16 AM on May 10, 2010


It's depressing to watch Obama throw away all the hard work that progressives put in during the campaign. (null terminated)


OFFS. I am a serious "progressive" in my politics, and worked my ass off to get Obama elected. And I am very happy with this pick (not thriled, but satisfied). So speak for yourself.

Ideologically rigid "progressives" are no better than ideologically rigid right wingers. None of y'all are ever able to grok the concepts of compromise, pragmatism, or the challenge of actually exercising political power. Grow up.
posted by fourcheesemac at 8:20 AM on May 10, 2010 [10 favorites]


Yes, Kucinich was a joke.

Sorry about that. I should be been more careful. There are things I admire about Kucinich as well, but the day he gets nominated for the Supreme Court is the day that the GOP votes to change the face on the $50 note from Ulysses Grant to Ted Kennedy.
posted by blucevalo at 8:26 AM on May 10, 2010


fourcheesemac, why are you happy about it? What have you read that we haven't?

And trust me, I grok the concepts of compromise and pragmatism just fine -- but the Obama administration increasingly seems to view these as ends in themselves. The other half of the "challenge of actually exercising political power" is knowing when to hold 'em. See, for instance, the now-doomed offshore drilling compromise, or Holder's apparent capitulation on Miranda rights. Half a loaf is half a loaf, and sometimes all you can get, but it shouldn't be your opening bid.
posted by gerryblog at 8:32 AM on May 10, 2010 [2 favorites]


Do people really think that a Supreme Court pick will have much affect on elections? Given how ignorant most Americans are on who actual is on the court I have my doubts.
posted by edgeways at 8:32 AM on May 10, 2010




You can believe in executive power and a progressive taxation system at the same time.

For a Congressional or even a Presidential candidate, that would be a set of tradeoffs to weigh. But for a Supreme Court candidate? Does a Supreme Court justice have more influence over executive power vs the rights of the accused, or over setting tax rates?

Also: outside of anarchists, Ayn Rand fanatics, and strawmen, *everyone* believes in progressive taxation. Even most libertarians grudgingly admit the need for tax-funded law enforcement and would rather take from the rich than from the poor to pay for it. I admit that "liberal" and "conservative" are terms of limited descriptive value, but surely they're a little more selective than that?
posted by roystgnr at 8:42 AM on May 10, 2010


Do people really think that a Supreme Court pick will have much affect on elections? Given how ignorant most Americans are on who actual is on the court I have my doubts.

I bet you a dollar there's at least one Republican mailing this election cycle that features Kagan's face badly photoshopped onto this picture of an admittedly unattractive man and woman with mullets that was used as "lesbians" by a Florida Christianist group. Along with some histrionic nonsense about OBAMA IS ALREADY APPOINTING THE PEOPLE WHO WILL TURN YOUR KIDS GAY TO THE SUPREME COURT! HE'S ABOUT TO BAN THE BIBLE AND MAKE EVERYONE TURN MUSLIM AND READ THE KORAN AND ALSO HE'S GOING TO FORCE EVERYONE TO BE GAY BECAUSE OF COURSE IT MAKES SENSE THAT A MUSLIM WOULD ENFORCE HOMOSEXUALITY ON EVERYONE!!!!! GIVE US MONEY NOW OR WE KILL JESUS!!! AGAIN!

Whether she's gay or not is of course immaterial to this; it's enough that she has a very mildly butch appearance and isn't married to a man.
posted by ROU_Xenophobe at 8:51 AM on May 10, 2010 [3 favorites]


I think undersold is Obama's desire to see his health care efforts upheld when the cases inevitably reach the high bench. Like FDR's New Deal, Obama (rightly in my view) thinks his legacy will live or die on the health care bill. His overriding concern could easily be picking someone who will be a reliable vote in favor of upholding the individual mandate and thus the historic "universal" health care "reform" bill. (scarcastic scare quotes for added bitterness)

Kagan has shown she is nothing if not a loyal servant to power, the likelihood of her voting with Roberts et al to strike down her patron's signature victory is near zero- and that could easily be Obama's primary, or only, concern.
posted by T.D. Strange at 8:57 AM on May 10, 2010 [1 favorite]


So allen, who's next in line and who's going to be the new Solicitor General?

Well, I'm not allen, but I'm betting on Neel Katyal. I believe it was probably understood when he took his current position that this was likely to happen.
posted by Navelgazer at 8:58 AM on May 10, 2010


The Sotomayor confirmation process, I think, firmly established how various factions feel about empathizing with the "despised and disadvantaged." Now, the RNC wants to know, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?"
...
So, what do you imagine Kagan's answer to the question, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" It surely won't be, "No, you're right. The framers got it absolutely right, excluding women and blacks from the rights of citizenship."

posted by zarq at 9:04 AM on May 10, 2010


fourcheesemac, why are you happy about it? What have you read that we haven't?

Consider the possibility that I have read the same things but interpreted them differently from your "we." Again, speak for yourself, not for "we."
posted by fourcheesemac at 9:06 AM on May 10, 2010


fourcheesemac, I think you're being unnecessarily defensive, even hostile. You wrote: "And I am very happy with this pick (not thriled, but satisfied)." I am genuinely curious why you feel this way. What about the Kagan pick makes you "very happy"?
posted by gerryblog at 9:12 AM on May 10, 2010 [1 favorite]


Kagan should be and will be confirmed. Ladies and gentlemen: the next Justice of the Supreme Court of the United States.
posted by thesmophoron at 9:13 AM on May 10, 2010


Well, I'm not allen, but I'm betting on Neel Katyal.

I'd love to believe that Obama would nominate the lead counsel from Hamdan v. Rumsfeld to be Solicitor General, but I don't know if I see it happening. It'd be worth it just to watch Republican heads explode in the Senate, though.
posted by EarBucket at 9:15 AM on May 10, 2010 [2 favorites]


I don't have to answer to your bullying tone, gerryblog. You're not genuinely curious and you're the one whose tone is "hostile." I have a right to my opinion without having to justify it to the ideological purity police.

There is a poll on dKos right now in which "very happy" and "moderately happy" are beating "no opinion" by 2:1, and "moderately unhappy" and "very unhappy" by 3:1, with nearly 4000 votes cast. For all the stereotyping, even in this thread, of the progressive community, at least this informal and unscientific survey says I am feeling about like the majority of my fellow progressives.
posted by fourcheesemac at 9:15 AM on May 10, 2010 [1 favorite]


PS -- the reasons for progressives like me to be satisfied with this pick are abundantly available in the public record and being widely discussed today. Click the link to Lessig's blog above, for example.

Where do you get off insisting I justify my opinion to you?
posted by fourcheesemac at 9:17 AM on May 10, 2010


I don't have to answer to your bullying tone, gerryblog.

For what it's worth, this feels like a misreading to me, fcm. You're not beholden to gerryblog's curiosity but I don't think he's trying to be a dick at all either, so maybe just let it lay if nothing else.
posted by cortex at 9:18 AM on May 10, 2010 [1 favorite]


In response to the first comment, how does being the former dean of Harvard Law School qualify someone to be a Supreme Court justice? The two jobs don't seem to have much to do with each other. Law school =/= law.

It demonstrates a sharp legal mind and a keen ability for analysis. You do not get that job by being an intellectual slouch. Furthermore, what a Supreme Court justice does is not like what a district court or even appellate court judge does. The heady Constitutional analysis that a justice does can easily be (and has been) done by academics and governors and practicing lawyers and former judges alike. The fact that Kagan hasn't been a sitting judge is a point for diversity on the Court, not a point against her qualifications.

Look, if you can produce some kind of evidence to show that she lacks the intellectual rigor necessary to sit on the Supreme Court I'm all ears, but I haven't heard it yet. The fact that she got kicked around by Kennedy a bit at the Citizens United argument doesn't really do it for me since she seems to have been prepared enough to win the damn case anyway.
posted by Doublewhiskeycokenoice at 9:20 AM on May 10, 2010


I feel like the quotation used in the title of this post is being used out of context. It comes form a response to written questions[pdf] from Sen Cornyn:
Question: Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?

Answer: There is no federal constitutional right to same-sex marriage.
I read this statement as a dodge of the issue and of Cornyn's fishing-expedition line of questioning. Even Cornyn is unhappy with that response, saying "Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general. This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions."

So I hope that statement is understood within the context it was used and not employed by unhappy progressives against her nomination.
posted by peeedro at 9:20 AM on May 10, 2010 [1 favorite]


But here, Andrew Pincus gives an extended, four-point version of the progressive case in favor of Kagan. That may be what I've read and you haven't. OK?

Pincus is a partner at Mayer Brown, a Yale professor, and co-director of Yale's Supreme Court Advocacy Clinic. He knows a good deal more about the political and legal landscape involved here than anyone posting in this thread.
posted by fourcheesemac at 9:24 AM on May 10, 2010


I don't have to answer to your bullying tone, gerryblog. You're not genuinely curious and you're the one whose tone is "hostile." I have a right to my opinion without having to justify it to the ideological purity police.

Is this a joke? This was your first comment in the thread:

OFFS. I am a serious "progressive" in my politics, and worked my ass off to get Obama elected. And I am very happy with this pick (not thriled, but satisfied). So speak for yourself.

Ideologically rigid "progressives" are no better than ideologically rigid right wingers. None of y'all are ever able to grok the concepts of compromise, pragmatism, or the challenge of actually exercising political power. Grow up.
posted by fourcheesemac at 11:20 AM on May 10 [4 favorites +] [!]


All I asked you, in response to that, was why you were "very happy." But I guess we can just call it off.

Thanks for pointing to Lessig at least, who I'd read. I guess we do interpret things differently; Lessig's argument to me is essentially "Elena is a dear friend." Which is great, but not really relevant to her qualifications for the Supreme Court.
posted by gerryblog at 9:27 AM on May 10, 2010 [1 favorite]


I saw Pincus this morning, too, but none of it speaks to what I still think is a central problem for Kagan's nomination, namely that her record is extremely thin. I have to agree with what Scott Lemieux wrote this morning: "In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended."
posted by gerryblog at 9:32 AM on May 10, 2010 [2 favorites]


Sorry, the permalink to Lemieux is here.
posted by gerryblog at 9:34 AM on May 10, 2010


I don't think it's at all clear that a more liberal justice with a longer paper trail could be confirmed. The Republicans have forty-one votes, and it's going to be much easier to get someone like Kagan through the hearings, particularly given that she's just recently been through confirmation and had her record picked through by Republican operatives. It's possible that they might be able to get to sixty votes with someone like Diane Wood, but there's no way it's a given. The last thing the White House needs right now is a humiliating defeat.
posted by EarBucket at 9:43 AM on May 10, 2010 [1 favorite]


Six Catholics and three Jews. All Harvard or Yale graduates.

I thought only Souter and Stevens retired. Where did Ginsburg go?
posted by thesmophoron at 9:59 AM on May 10, 2010


Whether she's gay or not is of course immaterial to this; it's enough that she has a very mildly butch appearance and isn't married to a man.

Far-Right Group AFA Demands To Know Kagan’s Sexuality, Since ‘No Lesbian Is Qualified’ To Sit On SCOTUS.
posted by ericb at 10:02 AM on May 10, 2010


Ginsburg's an old Catholic name, you know.
posted by EarBucket at 10:02 AM on May 10, 2010 [1 favorite]


Didn't we go though the "qualifications" bit with Sotomayor? fact is there are no Constitutional requirements at all. You don't have to be a judge, and some argue that having some non prior judicial members is a good thing. Hell in '54 the overwhelming majority of justices on the court had no prior judgeship role, William Douglas, Hugo Black, Harold Burton, Stanley Reed, Tom Clark, Felix Frankfurter, Robert Jackson, even Earl freaking Warren.
posted by edgeways at 10:07 AM on May 10, 2010 [1 favorite]


Some people in the left blogosphere seem to have really lost it over this pick: Elena Kagan Will Be The Most Unqualified Justice In History. (It is Firedoglake, so one shouldn't expect much in the way of Obama-friendly analysis, but still, the hysteria is unbecoming.)

As for the pick, while my top choice would have been Diane Wood, I think her age does work against her. Before making up your mind about Kagan, especially if you've been reading Glen Greenwald's articles, you must, must, must read this in-depth analysis of her record by Tom Goldstein at scotusblog.com. If you do read it, I think you'll see that her positions on executive authority have been misinterpreted (by those on the left and right), and the idea that she is a completely blank slate is not true.
posted by thewittyname at 10:08 AM on May 10, 2010


It's unclear to me which of the candidates out of the seven to ten that Obama supposedly had on his short list would not have engendered many of the same objections that Kagan has in this thread. Obama was never going to pick a candidate that would have been satisfactory to progressives/leftists. The only one on that list who came close was Diane Wood and she's 60 years old. Obama seems to want a justice whom he nominates to serve a long term, one at least as long as the terms of Roberts and Alito will be.
posted by blucevalo at 10:10 AM on May 10, 2010


None of y'all are ever able to grok the concepts of compromise, pragmatism, or the challenge of actually exercising political power. Grow up.

First, please try to respect people you are having a discussion with. Telling a whole group of people, some of whom are probably quite a bit older than you, to "grow up" doesn't help civilized discourse

The words "compromise" and "pragmatism" have consistently been used in one way: "doing what the Republicans want".

Let's take the perpetual wars, which is an important issue for me. "Compromise, pragmatism, or the challenge of actually exercising political power" means in this case simply that the military budget and the wars continue to uniformly increase regardless of which party is in power - that the eternal military build-up cannot be changed under any circumstances and any attempts to argue against continued military increases or the wars, no matter how polite or well-reasoned, are greeted with jeers like "grow up".

Ditto the rule of law, something almost equally important to me at least. The sad fact appears to be that the Bill of Rights isn't coming back - that Obama is committed to a stronger executive branch that is beyond the rule of law, even more aggressively than Bush (who just did these things and didn't attempt actually pass laws rendering the new order in concrete). There wasn't even a debate about the extension of the PATRIOT (/me spits) act, there's not even a timetable to close Guantanamo Bay - which is rendered irrelevant since Obama has argued that the rule of law will never apply in Bagram, which is not planned to be closed.

But you can't ask why we get negative progress on this issue, even though our candidate won, because we'll be told to "grow up". No one will actually debate us or give reasons why justice is actually served by increasing government powers at the same time that government transparency is further eroded - no one has to because we aren't "pragmatic" so everything we say can simply be ignored.

I worked on Wall Street for many years, and I'm appalled at the dreadful response to the massive looting that has gone on. I've argued this before here, but the fact is that misrepresenting the quality of the assets underlying securities deals isn't just a mistake, it's felonious - it can even be a crime if you do it through neglect rather than dishonesty (and it's really not clear that Sarbanes-Oxeley wouldn't also apply if you were a corporate officer).

The SEC didn't act until May 2010, almost two years after the results of this malfeasance was revealed, and the action is wimpy to the extreme. It seems quite possible that Goldman will simply pay a large fine, certainly less than a year's profits, and be able to go on completely unchanged - that perhaps one or two individuals will be sent to jail as sacrificial lambs, but the thousands of individuals in hundreds of companies who deliberately represented shit as gold will never be charged for the felonies they committed.

I don't believe a McCain/Palin Presidency would have behaved any differently here. The SEC had to do something - if only because many of the people who were ripped off were rich investment bankers and sovereign states.

Now, let's look at Mr. Obama's one success, the health bill. The fact is that the Democrats pissed away an entire year trying to "compromise" with the Republicans which got them precisely nowhere at all. The only way they passed the rather tepid bill they finally got is when they stopped trying to compromise.

It seems to me that many Americans don't actually have thought-out moral or ethical stances - they instead support a specific political party like they would a sports team, and consider it a "win" if that party scores - whether or not that score is actually some that they believe makes the country better. Certainly the shift that many Democrats made toward supporting the war in Afghanistan within a few months of Mr. Obama being elected astonished me, at least. I've had exactly the same opinion all along - that it was a pointless and expensive exercise that diverted the US from finding Osama Bin Laden forever - and it was a shock when many of my Democratic friends suddenly switched their opinion on that war without even realizing that they had done so - that people suddenly had forgotten that Afghanistan had made repeated offers to give up Bin Laden, people I was sure had chatted about this with me at the time...

So if you're thinking that the Democrats are your team and Mr. Obama is your captain and you want them to score, then you are absolutely right to try and marginalize me (and a heck of a lot of other people, I do believe). Mr. Obama is going to be able to rack up a lot more field goals as a follower than a leader, and score a lot more points simply going along with what the Republicans want.

I believe the root cause is that Mr. Obama has never taken a real loss in his career - he lost his first senatorial bid, but made an excellent showing and everyone is expected to lose their first senatorial bid. What he and a lot of other people fail to understand is that some causes are sufficiently important that you have to risk losing.
posted by lupus_yonderboy at 10:17 AM on May 10, 2010 [6 favorites]


What he and a lot of other people fail to understand is that some causes are sufficiently important that you have to risk losing.

The moment Obama loses anything this important the GOP will call it his Waterloo and use it as leverage to stop any movement forward on anything else that he has planned, legislatively or otherwise, for the rest of his term. This is not to say that they won't do that anyway, but a loss on this level gives that determination more momentum. Harriet Miers losing did not help the remainder of George W. Bush's second-term agenda.
posted by blucevalo at 10:37 AM on May 10, 2010


Half a loaf is half a loaf, and sometimes all you can get, but it shouldn't be your opening bid.

It should be when trying to get a whole loaf will not only mean ending up with a quarter-loaf of questionable bread, but also means that you get no damn bread at all for two years. If Obama fails to get Wood (or even somebody more liberal) through, who do you think we're going to end up with in that seat, and what do you think is going to happen over the next two years with a neutered President and Repub control of at least one house of Congress?
posted by joyceanmachine at 10:46 AM on May 10, 2010


No surprise, here, and I will lay money that Justice Stevens -- himself appointed by a Republican President and never expected to be the liberal wing leader of the Court -- is happy about this choice. I'll also point out a couple of the other people who have clearly liked Kagan a lot in her career: Bill Clinton and Joe Biden.

Given how hard right the majority on the Court currently is, and how critical Justice Kennedy is to that majority, the appointment of a second very smart and well respected Justice, with a history of working effectively across the ideological divide, I think President Obama could hardly have done better.

It doesn't hurt, given the upcoming midterm elections, that Rs who choose to fight this nomination are likely to stub their toes politically almost as badly as they did in opposing Sotomayor (and rightfully ticking off a lot of Latina/o voters.) The majority of Americans are sick of rigid partisanship and Republican obstructionism, as they have said in poll after poll.
posted by bearwife at 10:48 AM on May 10, 2010


meant to say -- "with the appointment"
posted by bearwife at 10:49 AM on May 10, 2010


Let's take the perpetual wars, which is an important issue for me.

Not to derail, but what about the Iraq withdrawal deadline of December 31, 2011? That sounds like an end to the Iraq War to me, at least.
posted by dd42 at 10:51 AM on May 10, 2010


fourcheesemac, why are you happy about it? What have you read that we haven't? -- gerryblog
It's important to understand that some progressives just don't give a crap about civil liberties. If you look back at the origional "Progressives" (Which are nothing like today's bowdlerized liberals afraid to call themselves liberal) they were not for civil liberties at all. The ACLU was founded due to the excesses of the Wilson Presidency. Today, there's no reason why someone who's primarily worried about, say Global Warming, or AIDS in Africa or whatever should particularly care about civil liberties.

What happens is that opposition parties tend to "Package" all the opposition issues together. So the progressive portfolio became: Global Warming, Progressive taxation, Rights for Women, Minorities, and Gays, Civil liberties, antiwar, etc. You're already starting to see teabagger types like Glen Beck try to appeal to people who are sick of war and worried about and are "afraid of government" (But there's something of a perverse incentive structure, because the republican party had totally invested in the Bush abuses, so now we have a situation where both the president and the republicans want to cut down civil liberties, which is problematic)

Anyway you can be an Obama supporting "Progressive" without giving a crap about civil liberties. It's a little silly for people to argue about "Who's the real progressive." But it's definitely true that people who care about civil liberties and rule of law got shafted here.
I think undersold is Obama's desire to see his health care efforts upheld when the cases inevitably reach the high bench. Like FDR's New Deal, Obama (rightly in my view) thinks his legacy will live or die on the health care bill. -- T.D. Strange
I think it's really unlikely that any judge that a Obama would nominate would strike that down. All they're doing is providing a tax credit that you don't get if you don't get healthcare. It's no different then tax credits for boats, or for a house, SUV, Solar Panels, whatever. It's called a "Mandate" but it's actually done with the tax code.
Ideologically rigid "progressives" are no better than ideologically rigid right wingers. None of y'all are ever able to grok the concepts of compromise, pragmatism, or the challenge of actually exercising political power. Grow up. -- fourcheesemac
Right because not having any wars would be totally worse then having a shitload of wars and killing a ton of people. Totally the same. No Moral difference.
posted by delmoi at 10:58 AM on May 10, 2010 [1 favorite]


All Xs are Y.
All As are B.
posted by edgeways at 11:02 AM on May 10, 2010


And thus ends my slender, silly hope that I might someday witness the poetic justice of seeing Al Gore on the Supreme Court.
posted by Pater Aletheias at 11:04 AM on May 10, 2010 [1 favorite]


The most interesting things I have read about today have to do with her 1995 review of Stephen Carter's book, in which she argued that a SCOTUS nominee should answer questions about the legal issues that they will be deciding, contrary to the position taken by all recent nominees. The Media Matters 'myths' dealt with this by providing reasons she could back away from this position, citing Roberts and Alito's extreme refusals to answer basic questions about their political and judicial philosophy.

The problem with this? She was right back then. A nominee should answer questions. Bork probably would have gotten confirmed, except he actually answered a question honestly about a constitutional amendment. Since Bork, Senators let nominees get away with not answering those questions, and look who is now populating the court.

All this goes to say one thing. I don't really know much about Ms. Kagan, but if her nomination process, up or down, gets nominees in the future to actually answer some questions about what they think the law is, it will be a good thing for the country. If she pulls the same crap that everyone has since Bork, that same crap she called out in 1995, then that will be a huge disappointment in my book.
posted by norm at 11:13 AM on May 10, 2010 [1 favorite]


Kagan elaborated as well on the memorandum to Justice Marshall discussed above. “I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court’s statement that ‘[t]he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. are not themselves “specifically religious activities,” and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.’ As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called ‘specifically religious activity.’ But I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”
Future Justice Kagan thinks its peachy keen fine and dandy to throw tax dollars at religious organizations. She also fought a hard and bitter fight to put one of Bush's architects of torture into a position at Harvard Law School, because what America really needs is it's future high powered lawyers being instructed by a guy who thinks torture is great.

Surely Obama can find someone who doesn't love torturers and who thinks that giving tax dollars to religious groups isn't a great idea?
posted by sotonohito at 11:38 AM on May 10, 2010 [1 favorite]


Another interesting quick read on the nomination here from the Economist.
posted by bearwife at 11:38 AM on May 10, 2010


Greenwald's response is as predictable as the nomination:
It's anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals -- as is reflected by its actions and policies -- and this is just one more to add to the pile. The fact that she'll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.
posted by delmoi at 11:39 AM on May 10, 2010 [1 favorite]


I think in principal that is exactly it norm, the only real downsides I see is if the nominee is selective in answering question, in that they answer pertinent on-topic questions and avoid the politically triggering ones then they get slammed with the same accusations. And I actually think the nominee should not answer just any question that pops in the Senator's heads. Which is the flip side, yeah they should answer more questions, but the Senators should ask worthy questions as well. For example, I know it is important, I know it is vitally important, but I just don't want nominees to be asked about Roe v. Wade, because it is a disingenuous question. Whoever asks it (pro or con) wants the nominee to agree with them and cares little about the law of the matter. Plus actually answering the question provides political cover to rail against the candidate and make the entire process about R v.W.
posted by edgeways at 11:44 AM on May 10, 2010 [1 favorite]


Nobody whose first job out of law school was at Wachtell has the moral authority to call someone else a "seemingly principle-free careerist."
posted by thesmophoron at 11:45 AM on May 10, 2010 [1 favorite]


A co-worker pointed this out:

David Mitchell, Elena Kagan.
posted by Artw at 12:24 PM on May 10, 2010 [2 favorites]


It's gonna be so much fun to hear the various cracks about Kagan's looks over the next few months.
posted by Brandon Blatcher at 12:28 PM on May 10, 2010 [2 favorites]


It's gonna be so much fun to hear the various cracks about Kagan's looks over the next few months.

1) Yes. Kagan has made the strategic error of being a successful lawyer and academic without being a supermodel.
2) I literally first heard of the official nomination of Ms. Kagan through a 4chan post pointing out the Mitchell comparison. This is the first time in my life that I'm glad Peep Show isn't more famous in America.
posted by Sticherbeast at 12:35 PM on May 10, 2010 [2 favorites]


Artw - that seems unnecessary.
posted by macfly at 12:36 PM on May 10, 2010 [1 favorite]




> "David Mitchell, Elena Kagan."

AAAAH CANNOT UNSEE.
posted by saturnine at 1:05 PM on May 10, 2010


You really can't, can you? It's uncanny.
posted by Artw at 1:07 PM on May 10, 2010


According to the National Review, she's out of touch with America because she didn't learn to drive until her late twenties.

MASSTRANSITNEWYORKJEWLIBERALCOMMUNISTPAGANWOMYNFLUORIDEGOOGLERONPAULDAVINCICODEOMGWTFLOLDEMOCRACY

Did I miss any code words?
posted by joe lisboa at 1:12 PM on May 10, 2010 [1 favorite]


I literally first heard of the official nomination of Ms. Kagan through a 4chan post pointing out the Mitchell comparison. This is the first time in my life that I'm glad Peep Show isn't more famous in America.

To be fair when I look at David Mitchell I think "staid and sensible, probably knows far too much about the Siege of Stalingrad"... which are probably not bad qualities in a Judge.
posted by Artw at 1:16 PM on May 10, 2010 [1 favorite]


Crap, I knew there had to be something that my not learning to drive till I was 24 meant!
posted by blucevalo at 1:40 PM on May 10, 2010 [1 favorite]


If the National Review is whinging about her driving ability, it's because they know they have nothing substantive to attack her on. Short of some kind of bombshell being discovered (unlikely, given the fact that she's already gone through this process recently) the confirmation's going to be a cakewalk.
posted by EarBucket at 2:40 PM on May 10, 2010


Some pro-Kagan links from Climate Progress: Obama’s Supreme Court nominee, Elena Kagan, “has a reputation as a supporter of environmental law and as a lawyer who takes climate change seriously,” notes Green Energy Reporter.

“She left a nationally visible mark on environmental law at Harvard,” said Jim Rossi, an environmental law professor quoted in a March 2009 NYT/Greenwire piece on Kagan after she was confirmed as solicitor general. “For many years, Harvard was not known for a primary expertise in the environmental jurisprudence, and that changed under Dean Kagan’s watch.”

posted by gerryblog at 2:52 PM on May 10, 2010


Encouraging:

In a 2005 letter to Sen. Patrick Leahy (D-VT), Kagan and three other deans of major American law schools wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "

"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

posted by EarBucket at 2:57 PM on May 10, 2010


Andrew Sullivan asks if she's gay. Not surprising, given his obsession with Palin's vagina.

The weird thing, though, is that it does seem like most people thought she was an out of the closet lesbian. I do feel like it's the presses job to figure this stuff out, not just spout whatever the whitehouse wants them to say on an issue.
posted by delmoi at 3:05 PM on May 10, 2010


Future Justice Kagan thinks its peachy keen fine and dandy to throw tax dollars at religious organizations

Surely Obama can find someone who doesn't love torturers and who thinks that giving tax dollars to religious groups isn't a great idea

You realize Obama also favors giving tax money to religious charities, right?
posted by wildcrdj at 3:07 PM on May 10, 2010 [1 favorite]


The MSM has a very strict, albeit unspoken, rule that it will not "out" someone and that they must acknowledge their sexuality themselves. This applies to all serious people, such as Lindsey Graham, Anderson Cooper, and yes, Elena Kagan.
posted by mek at 3:08 PM on May 10, 2010


All the best people don't drive.
posted by Artw at 3:09 PM on May 10, 2010 [2 favorites]


Certainly the shift that many Democrats made toward supporting the war in Afghanistan

The Democratic party pretty much always supported the Afghan war. Some Democratic voters disagreed with the party, but the Democrats were against Iraq, not Afghanistan. Near-unanimous vote supporting the invasion, and I can't think of many prominent Democrats who ever opposed Afghanistan (aside from a few reliably left people like Kucinich).
posted by wildcrdj at 3:14 PM on May 10, 2010




Oh, and on the subject of Harriet Miers: Kagan is obviously much more accomplished than Miers

Whatever you think of her and Bush's politics, let's not get carried away with the bashing of Harriet Miers. Just because she didn't go to an "elite" law school doesn't necessarily mean she's not an intelligent and accomplished lawyer. Miers was on law review at her school and rose to being co-managing partner of a large law firm before she became Bush's White House counsel. Maybe Miers was no constitutional scholar, but she was certainly no dummy.
posted by gyc at 4:44 PM on May 10, 2010 [2 favorites]


Permit mightygodking to blow your mind.

11-dimensional chess, eh? Never heard that one before.
posted by mek at 5:04 PM on May 10, 2010


AP, Washington, May 7th.

When asked today about appointing Glenn Beck to the Supreme Court, President Palin said, "Well, you know, I didn't expect to have deal with this so soon after President McCain's aneurism, but, gosh, Glenn definitely knows what the American People, the real American People like us, need and talk about. He's no fuddy duddy lawyer type, and I know he changes his own oil like he understand, more American should change their own oil and he says this even when it's unpopular. He'll bring a balancing...a bracing, a voice to the people that the people know and understand and we all like him and listen to what he has to say, and well can all work together to bring the Supreme court back together like the family it was under Reagan."

Count your blessings, people.
posted by digitalprimate at 6:27 PM on May 10, 2010 [9 favorites]


They'll win again someday, digitalprimate. And when they do they'll nominate people whose far-right credentials are beyond dispute.
posted by gerryblog at 6:43 PM on May 10, 2010 [1 favorite]


"Someday" makes it sound comfortably far into the distant future. Perhaps eons.

It won't be someday.
posted by blucevalo at 7:09 PM on May 10, 2010


Whatever you think of her and Bush's politics, let's not get carried away with the bashing of Harriet Miers.

No, by all means, let's not carried away. Bush's allies certainly didn't.

Of course, all of these same people (and others) will now use similar arguments to amplify their attacks on Kagan. John Cornyn publicly supported Miers in 2005, saying that "right now you have people who've been federal judges, circuit judges most of their lives, or academicians. And what you see is a lack of grounding in reality and common sense that I think would be very beneficial." He now says that "Kagan is a surprising choice because she lacks judicial experience."
posted by blucevalo at 7:39 PM on May 10, 2010


Was Cornyn the wanker that was on NPR this afternoon/evening? I missed the intro, (and thankfully haven't memorized ole Corn-yn's voice) but it was some Republican whinging on. The interviewer did attempt some small level of "well you said this about Bush nominees (respect their refusal to answer some question or another) does that apply to this nominee?" which was met with all manner of bullshit "well it will be a very interesting discussion, blah blah blah judicial activist blah blah blah".
posted by edgeways at 7:53 PM on May 10, 2010


otherdraco:
What about all the hard work put in by moderates who also campaigned for and voted for Obama?

Yeah, I'd count myself among those. Well, not the hard work bit, but the moderate part.

What constantly surprises me is how much people read into Obama ("read" in the past tense) what they wanted to see. I have conservative relatives who thought and still think he's a socialist/antichrist/Islamic extremist. I come here and read comments from progressives who are completely disappointed that Obama isn't as far to the left as they had hoped he would be.

But Obama was ALWAYS a moderate. He campaigned on bringing people together! Why would anyone expect that this talk would mean, in practice, "forcing down conservatives' throats that we are 100% right"--as opposed to "working with conservatives to make whatever steps possible toward progress"?

I just don't get it. Seems to me his walk has matched his talk, maybe tempered by a few reality checks as he's learned what it means actually to be the POTUS, with all the power, constitutional limitations, and responsibility that that involves. And which doesn't include a magic wand.
posted by torticat at 8:15 PM on May 10, 2010 [3 favorites]




Is there a constitutional protection to heterosexual marriage that I'm missing in my reading?

Why, yes, there is. Your reading apparently missed Loving v. Virginia. Granted, Loving held that marriage is a fundamental and basic civil right of man, and that it is tied to the Constitution by way of the Fournteenth Amendment. And Loving's holding that marriage is a basic civil right was based on the assertion that marriage is fundamental to humanity's existence and survival - a holding that seems on its face to be relying on procreation. While I think there are some logical problems with that basis, at least when the argument is taken to the extreme, I think it does give some indication of what the Loving court considered to be the scope of the legal construct of "marriage" to which that court held there is a basic civil right. Here's the relevant passage from Loving:

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535, 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Loving v. Virginia, 388 U.S. 1, 12 (1967).
posted by The World Famous at 11:27 AM on May 11, 2010 [2 favorites]


The push from the right is all theater and politics. They don't really want to win this battle. If they do then Obama could just decide that the GOP will never support any compromise candidate and go for a true liberal like Sidney Thomas.
posted by caddis at 11:49 AM on May 11, 2010


Is there a constitutional protection to heterosexual marriage that I'm missing in my reading?

Zablocki v. Redhail. (Opinion.)
posted by Jaltcoh at 11:58 AM on May 11, 2010 [1 favorite]


To be clear, I personally believe that same-sex marriage should also have constitutional protection. But Zablocki clearly says there is a constitutional "right to marry," and I'm sure the justices weren't thinking of marriage as anything other than "heterosexual marriage" when they decided the case in 1978. In fact, the reasoning in the opinion is specifically based on the spouses being able to procreate. There's a difference between what constitutional case law actually says, and what you'd like it to say (which, BTW, could explain the quote by Elena Kagan in the heading of this post).
posted by Jaltcoh at 12:06 PM on May 11, 2010


Andrew Sullivan disses her careerism:
David Brooks' column today really helped crystallize for me my qualms about Elena Kagan. Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Car Acela Corridor elite.
This is something I've noticed too. It seems like the only time she's ever stuck her neck out was to ban military recruiters. In every other instance, she'd been working for someone else, doing what they requested. She even supported a ban on Late Term abortion during the Clinton administration because she thought it would be politically expedient.

Virtual every defense of her is based on people she knows saying how great she is. But come on, if it was your friend nominated to the supreme court, wouldn't you say nice things about her? There is zero actual evidence presented, other then "I know her and she's great"
posted by delmoi at 1:33 PM on May 11, 2010


But come on, if it was your friend nominated to the supreme court, wouldn't you say nice things about her?

No, because I know Harold would make a crappy judge, even when he showed up for work.
posted by Brandon Blatcher at 1:52 PM on May 11, 2010


Boston Globe:
For the court, a broker’s skills
The White House is counting on Supreme Court nominee Elena Kagan to use her influential voice, intellectual heft, and knack for building consensus to help keep the high court from shifting to the political right, Democrats say.
At Harvard, dean eased faculty strife
If she is confirmed as a Supreme Court justice, Elena Kagan will be well prepared for the fractiousness that often marks the nation’s highest court, having brought peace and, some say, happiness to Harvard Law School.
posted by ericb at 1:56 PM on May 11, 2010


You know we're in the weeds when David Brooks starts making sense.
posted by mek at 2:03 PM on May 11, 2010


You know we're in the weeds when David Brooks starts making sense.

Given that Brooks' point seems to be that Kagan is essentially the ideal nominee, I'm not sure his qualms actually make sense.
posted by The World Famous at 2:05 PM on May 11, 2010


If she is confirmed as a Supreme Court justice, Elena Kagan will be well prepared for the fractiousness that often marks the nation’s highest court, having brought peace and, some say, happiness to Harvard Law School.

If you're a Supreme Court justice, you don't succeed at bringing other justices to your side by spreading "peace and happiness." You do it by convincing them on the legal issues at hand. Kagan apparently isn't very good at doing that.
posted by Jaltcoh at 2:07 PM on May 11, 2010


Oh snap! The Daily Show totally made sort of the same observation I did! This makes me feel like I should snark professionally.
posted by Joey Michaels at 12:24 AM on May 12, 2010








The idea that views on this single case ought to be a litmus test for the appointment of a lifetime justice on the Supreme Court is one of the worst things that has ever happened to American political discourse.

Oh, agreed. But if the right is going to play hardball with this game, how can you risk ignoring it? Like it or not, abortion remaining legal in this country shakily weighs on this ruling. If you care more about abstract jurisprudence than access to legal abortion, then that's your deal, but don't discount people whose priorities are different.

FWIW, I don't think she's a crypto pro-lifer. But I am concerned that come re-election, Obama will be struggling for a second term, with a high possibility of losing that fight. When (if?) Republicans are back in power again it's going to be so far to the right it's going to make Bush look like a centrist in comparison. So pardon me for preferring an actual progressive in that precious SCOTUS seat, because I only see it shifting far more to the right over the next decade. Hell, it's shifting to the right even with Obama.

I keep seeing people talk about how conservatism is on the wrong side of history, but I feel this is wildly optimistic. Just because they lost this last horse race doesn't mean they lost the long game.
posted by cj_ at 11:26 PM on May 15, 2010 [1 favorite]




Pat Buchanan: Too Many Jews On The Supreme Court.

To paraphrase Molly Ivins, I'm sure his comment sounds better in the original German.
posted by zarq at 8:45 PM on May 17, 2010


SCOTUS nominee Kagan helped defend RIAA from Jack Thompson

Wait...? Wha...? HOW DOES ONE EVEN PICK A SIDE ON A CASE LIKE THAT?
posted by Artw at 3:54 PM on May 19, 2010 [1 favorite]


Wait...? Wha...? HOW DOES ONE EVEN PICK A SIDE ON A CASE LIKE THAT?

Easy: Pick your client's side.
posted by The World Famous at 4:02 PM on May 19, 2010


Yes, but our job is to come up with kneejerk praise or condemnation based on her based on her choice of client - where do we even start?
posted by Artw at 4:04 PM on May 19, 2010




Obama wins the right to detain people with no habeas review
But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates' ruling. As the NYT put it about that appeal: "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight." Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

...

One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?
posted by homunculus at 2:35 PM on May 21, 2010


If it's true that the native New Yorker has been a lifelong Mets fan, but grew "partial to the Red Sox" during her first time around in Boston, who did she root for when the Mets played the Bosox in the '86 World Series? Surely not both of them. And if she instead started rooting for the Red Sox when she returned to Beantown in 1999, was it because she genuinely liked the Sox -- or, could it be that, remaining a Mets fan at heart, it was really more a case of, like all good Mets fans, hating the Yankees?

You are allowed to root for the Sox when they play against the Yanks. Otherwise this is heresy and is grounds for a vote against Kagan!!!!!!!!!!!!!!!!! This is serious stuff. Sotomayer is an Yankee Fan abomination. Of course the real apostate is Alito - he's a Phillies fan. Damn him straight to Hades.
posted by caddis at 6:40 PM on May 21, 2010








Homunculus, of all of the Christopher Hitchens articles I have ever read, that one may be the most maddeningly idiotic.
posted by The World Famous at 10:57 AM on June 2, 2010


Thanks for that illuminating critique.
posted by Jaltcoh at 11:11 AM on June 2, 2010


You're welcome. Did you need more detail than that? I assumed that any rational and reasonably-informed person could just read the article and reach the same conclusion that I did.
posted by The World Famous at 11:15 AM on June 2, 2010


You had me at Hitchens.

I thought the Vatican's weird little separate state status was broadly accepted, if still kind of weird and maybe controversial?
posted by Artw at 11:21 AM on June 2, 2010


There are plenty of 9th Circuit opinions that I actually have no problem with, but can anyone in the world not do a spit take when they read the following sentence, as written by Christopher Hitchens?

It will be a disgrace if the Supreme Court overrules the sane and legal finding of the 9th Circuit.
posted by The World Famous at 11:24 AM on June 2, 2010


You're welcome. Did you need more detail than that? I assumed that any rational and reasonably-informed person could just read the article and reach the same conclusion that I did.

Of course, my previous comment was sarcastic. Yeah, Hitchens takes unpopular positions, but at least he has the courage to explain why he believes what he believes. I enjoy reading him even when I disagree with him. In contrast, I don't think anyone gets anything out of reading Metafilter comments of the "oh, that's so terrible it's not even worth explaining why it's so terrible" variety.
posted by Jaltcoh at 11:36 AM on June 2, 2010




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