Why Kagan and What Now?

Barack Obama may have had an excellent reason for choosing Elena Kagan, according to Glen Greenwald.

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.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn?  Hence:  Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable [National Review delinked] (even as they go through the motions of opposing her).  As Kevin Drum writes:

[R]ight now Obama has the biggest Democratic majority in the Senate he’s ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? . . . . When Obama compromises on something like healthcare reform, that’s one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn’t have to do this. Unfortunately, the most likely answer is: he does it because he wants to… [emphasis original]

It’s even less surprising that Obama would not want to choose someone like Diane Wood.  If you were Barack Obama, would you want someone on the Supreme Court who has bravely insisted on the need for Constitutional limits on executive authority, resolutely condemned the use of Terrorism fear-mongering for greater government power, explicitly argued against military commissions and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution on a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular?  Of course you wouldn’t.  Why would you want someone on the Court who has expressed serious Constitutional and legal doubts about your core policies?  Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists — and has seized the power to assassinate American citizens with no due process — wants someone like Diane Wood on the Supreme Court?

One final thought about Kagan for now.  As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama.  That’s just how things work.  They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick.  In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court.  Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan’s confirmation.  Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives — as they proved several times late in Bush’s second term [Miers, immigration, Dubai Ports] — were willing to oppose their leader whey they disagreed).  The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).

All that said, I’ve said everything I had to say about Kagan in the pre-nomination process in order to enable as informed a public discussion as possible, and am not going to endlessly repeat those criticisms now just for the sake of doing so.  Perhaps the confirmation process, for once, will yield some valuable information about the nominee and we’ll acquire at least some insight into how she thinks and what her judicial values and methods will be.  I’m willing to keep an open mind… [emphasis added]

Inserted from <Salon>

Glen Greenwald’s view reflects my own.  Despite severe reservations, I’m keeping an open mind.

Keith Olbermann and Prof. Jonathan Turley have mixes views as well.

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Some, are not keeping an open mind.

The Republican National Committee (RNC) caused a firestorm Monday after questioning Elena Kagan’s support for the judicial philosophy of the nation’s first African-American Supreme Court justice, Thurgood Marshall.

The initial charge from the RNC arrived even before Kagan stepped up to the White House lectern to accept her nomination.

RNC Chairman Michael Steele targeted her praise for the jurisprudence of Marshall, a liberal icon, and a speech in which Marshall called the Constitution “defective.”

By the end of the day, the RNC was defending its statement, responding to criticism from bloggers that Steele had overlooked the stain of slavery on the nation’s history.

The memo the RNC sent to reporters Monday morning stopped short of directly attacking Kagan for her use of Marshall’s words, but it offered a preview of the lines of criticism that may come from Republican senators opposed to her nomination.

However, Senate Republicans did not immediately follow Steele’s lead.

The GOP document also pointed to Kagan’s support for a lawsuit against the government’s efforts to deny federal funding to law schools that banned military recruiters from their campus in protest of the military’s “Don’t ask, don’t tell” policy on gays.

The comments in question came from a 1993 tribute to Marshall that Kagan penned in the Texas Law Review. She quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.”

Marshall cited in particular the definition in the original Constitution to slaves as representing three-fifths of “free Persons” when counting the nation’s population. That reference was rendered moot after the Civil War with the ratification of the 13th and 14th amendments abolishing slavery and granting full citizenship to all people born in the U.S.

Kagan also quoted Marshall as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”

“Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution ‘as originally drafted and conceived,’ was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment,” Steele said in the statement.

The RNC document is likely just the opening salvo from GOP researchers, who have spent months examining the public records of all of Obama’s potential Supreme Court nominees. Yet an effort to associate Kagan negatively with Marshall, who is revered by liberals and African-Americans, could prove explosive.

Kagan, currently the solicitor general, is a former law clerk for Marshall… [emphasis added]

Inserted from <The Hill>

Marshall and Kagan are right.  Until amended, the Constitution was defective.  The GOP is wrong.  So this reveals little about Kagan.  Since the GOP believes that slavery was not a defect, it says a lot about where they stand.

Here’s Keith again with Ezra Kilen and some of Kagan’s problems

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I like what they have to say on this.

So what now?  We can expect obstruction from the GOP. maybe even a filibuster.

TWI’s Mike Lillis catches Mitch McConnel mid flip-flop. Last month, he ruled out a Republican filibuster of any Obama nominee, unless that person had "really bizarre fews. [sic]"

But today he’s saying that "it’s way to early to be making a decision about the issue of whether there should be a 60 vote threshold on the nominee." Way too early, because it’s not like they’ve already been through a nomination process for Kagan when she received confirmation as Solicitor General, or as Lillis put it, as if she "just arrived in a coffee can from Pluto."

What could have changed McConnells’ mind? Could it have been this?

In an April 22 conference call with RNC members, which was recorded and passed my way by a source, activist Curt Levey, director of the conservative Committee for Justice, offered Republican operatives candid strategic advice, pressing them to put up a fight against even the most moderate of judges, and providing a glimpse of the GOP’s playbook for obstructing Obama nominees.

The crux of the GOP’s strategy is to use Obama’s nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.

"[I]t wouldn’t take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."

… [emphasis added]

Inserted from <Daily Kos>

I’m still keeping an open mind, but I believe she will be confirmed.  The process promises to be ugly!