Perfunctory Kagan article

by: Chris Bowers

Mon May 10, 2010 at 07:51

At 10 a.m., eastern, today, President Obama is expected to announce that he is nominating Solicitor General Elana Kagan to replace John Paul Stevens on the Supreme Court.  While I do not have strong feelings about Kagan, I do believe in providing context to major news events, and hopefully that is what I can accomplish in this article.  Here goes:

  • Ideology.  Justice Stevens is widely regarded as the leading liberal voice on the Supreme Court.  Kagan is considered to be more moderate and, as such, if she is confirmed, the court, on net, would shift to the right.  Glenn Greenwald wrote the definitive article in this line of thinking four weeks ago.  However, as I explain below, it does seem likely that any left-wing pushback against Kagan would probably only help her confirmation.

  • Demographics.  At only 50 years of age, Kagan would be the youngest Supreme Court Justice.  Also, Kagan would only be the fourth woman to serve on the Court ever, and it would be the first time in history that three women have served on the Supreme Court.  Further, Kagan is Jewish, which means that there would be no Protestants on the Supreme Court for the first-time ever (currently six Catholics and two Jews).

  • Experience. Kagan has never been a judge, and would be the first Supreme Court Justice in 40 years without any judicial experience.  However, all-time, one in three Supreme Court Justices have had no judicial experience.  Further, it is unlikely that her lack of judicial experience will translate into an effective attack against her lack of qualifications, given that she clerked for Supreme Court Justice Thurgood Marshall, was Dean of Harvard Law School, and Solicitor General of the United States.

  • 2009 confirmation fight. Kagan was confirmed as Solicitor General just last year, with several Republicans voting in favor:

    The Republicans who voted "yes" on Kagan last spring include: Oklahoma Sen. Tom Coburn, Maine Sens. Olympia Snowe and Susan Collins, New Hampshire Sen. Judd Gregg, Arizona Sen. Jon Kyl, Utah Sen. Orrin Hatch and Indiana Sen. Dick Lugar.

    Lugar, Collins and Snowe all also voted to confirm Sonia Sotomayor, making them the three biggest flash points of this fight.

  • Does this finish off Specter?  To take a side track for a moment, the biggest loser in this fight, at least in the short-term, has to be Arlen Specter   Last year, when he was still a Republican, Specter actually voted against Kagan.  Now, with eight days until the Pennsylvania Democratic Senate primary, and with Joe Sestak surging into a 47%-42% lead as of this morning, Specter faces an extremely difficult double-bind that aims right at the heart of the case against him.  If Specter comes out in support of Kagan, then he looks like an opportunistic flip-flopper trying to appease Democratic voters and win an election.  If Specter sticks by his vote from last year, then he just looks like a Republican.  With Sestak blanketing the Pennsylvania airwaves with a devastating attack ad to this effect, Specter is in a world of hurt.

  • Potential roadblocks.  Returning to Kagan, nomination fights like these are usually won or lost within the first 48 hours, making the next two days crucial no matter where you stand on Kagan.  For a negative storyline to develop around her, typically it will require both Republicans and some Democrats to be making the same argument (such as the "crony" argument over Harriet Miers.)  Here is a quick run-down of the expected attacks:

    1. She taught with Obama at the University of Chicago. I anticipate the main attack against Kagan to try and replicate the Harriet Miers "crony" narrative.  Kagan has no judicial experience, but did teach with President Obama in the early 1990's at the University of Chicago.  Not sure how well this will stick, as Kagan is highly credentialed--far more so than Miers.  However, combined with the attack below, there might be some problems.

    2. Kagan has ties to Goldman Sachs.  This certainly sounds bad:

      Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show.

      A spokesman for Goldman Sachs did not respond to requests for comment Monday.

      The advisory panel met once a year to discuss public policy issues and was not involved in any investment decisions, Justice Department spokesman Tracy Schmaler said.

      While it is unclear exactly what being on this panel actually means about Kagan, even tenuous Wall Street ties like these might well hurt her in the confirmation fight.  If there is some way that these ties combine with a whiff of cronyism, then Kagan opponents might have something, even if both those lines of attack are a bit tenuous on their own.

    3. Diversity problems.  Kagan had a pretty poor record on diversity hiring while she was at Harvard, although, unfortunately, it may not be out of the mainstream for top flight law schools.  Any successful progressive opposition to Kagan would have to incorporate this critique.  At the same time, it is difficult for me to imagine a progressive coalition defeating the fifth woman ever nominated to the Supreme Court, and the first African-American President, over diversity issues.  

    4. Kagan is too far to the right. This won't work.  Not many Americans care about abstract ideological positioning, and Republicans won't parrot this talking point.  If anything, such opposition would probably help Kagan's confirmation, by making her look moderate, or something.  If progressives want to stop her from being confirmed, the absolute least effective attack will be going after her for being too far to the right.

    5. Kagan is a blank slate.  Hard for me to fathom how not knowing where a potential SCOUTS judge stands is going to light a fire of opposition to her.  I say this both because of my experience on the Roberts confirmation fight, and because the general population doesn't demand clear issue positions from pretty much any electoral candidates, much less SCOTUS candidates.
If you want to beat Kagan, I believe the best line of attack is going to incorporate some combination of her never being judge, having previous connections to Obama, and having more recent connections to Goldman Sachs.  Even if you want to defeat her for more ideologically-oriented, left-wing reasons, the core of opposition to her will be Republican, and the opposition will need to at least somewhat be on the same page.

Personally, I don't anticipate doing much in regards to this fight.  There may well be reasons to worry about Kagan, but ultimately they seem vague.  In fact, Greenwald's case against Kagan is grounded in the vagary surrounding Kagan, given how sparse her views are, how Kagan was largely silent during the Bush years, and how there are candidates with much clearer records.  Further, while Kagan is likely further to the right than Stevens, perhaps even significantly so, but I have no confidence that Kagan's defeat would lead to President Obama nominating someone like Diane Wood.

Vagary just isn't enough for me to man the barricades.  I will keep an eye out, but there are plenty of fights to choose from these days, I am not very excited about this one either way.

Chris Bowers :: Perfunctory Kagan article

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If not now, then when? (4.00 / 3)
Seriously, how much blatant triangulation and nudging to the right is going to be accepted by the "left" before the (perceived) leaders of the movement are willing to stand up to Obama?

So far the most compelling arguments that have been mounted FOR Kagan are "people who know her personally say she's a liberal, (often by virtue of having worked for Clinton)", "she's a woman AND Jewish" and "Obama said so".

Maybe this isn't a case of "Obama is wrong" so much as "Obama could do way better for the base"...but isn't the latter worth fighting for?

Excellent point. (4.00 / 2)
This is the Supreme-frakking-court. If Kagan turns out to be a "stealth candidate," Obama will have significantly moved the court to the right with this nomination and will have done so for generations.

Now is not the time not to have the stomach for the fight. The time to fight this nomination is now.

[ Parent ]
Elliot Spitzers strong defense of her, and Lawrence Lessig's personal endorsement (0.00 / 0)
Both endorsements suggest that fighting this from the left will be less than a clean ideological split.

I agree there is an unknown quality here, but it isn't the rally to the barricades kind of issue I need to drop everything else for. In fact, there are so many real issues, not potential issues, that I am going 5to ignore this fight completely.

I'll watch some of the stink bombs, and try an pick which are merely Brand Democrat attacks, and which are factually based worries.


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
Do you have a link to the Spitzer defense? n/t (0.00 / 0)
[ Parent ]
Yes (4.00 / 1)

Eliot Spitzer: Elena Kagan Will 'Get The Fifth Vote'


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
Stealth Candidate? THEM'S THE RULES! (4.00 / 2)
Under the new "rules" of S.Ct. nominations, ONLY "Stealth candidates" can get nominated without a bruising floor fight. You can bet that from now on, especially if your enemies control the Senate, no-one who  ISN'T a "Stealth Candidate" will get nominated!

After Republicans failed to lever Robert Bork onto the S.Ct. and barely managed to confirm Thomas after a lengthy floor fight, they decided that it wasn't Bork's politics, but his record of controversial statements and decisions that gave Democrats brick-bats to hit him over the head with.

So, they snuck Alito and Roberts onto the Court despite their extremist views, because there wasn't a blatant track record for Democrats to oppose them with. (It was clear who they were before hand, but hard evidence to build a public case was lacking).

Alito and Roberts aren't any less conservative than Bork, they were just more vanilla (and didn't have a beard). It was easier for them to lie and thus prevent political enemies from finding a way to defeat them.

Republicans decided that the key advantage of the President is in being able to closely question the nominee in advance about their views. In this case, Obama probably knows her views privately anyway from discussions he had with her when they were faculty members together.

Obama is simply playing by the rules they established. Pick someone as young as possible, without an obvious track-record of controversy to provide opponents a way to attack her -- and then ram her through.

Progressives may want a person with a blatant track record of taking Progressive stances on controversial issues. But, that just would guarantee a massive Senate Floor fight for the next 3 months, that we might very well lose (there are still a lot of Blue-Dog assholes remember) and for what really?

The current court is so Conservative that she's NOT going to side with the Roberts block on very much at all. A "mainstream" Democrat basically is to the left of everybody on that court except Sotomayor and Ginsberg.

Obama clearly doesn't want a fight. And he has the ability to pick someone who shares HIS values without giving his enemies a weapon to attack him with.

When it comes time to vote Kagan might just make as good a justice as anybody.  

[ Parent ]
"Obama... has the ability to pick someone who shares HIS values..." (4.00 / 2)
That's what concerns me.  ::frown::

Educate, Agitate, Organize, Mobilize, Act!

[ Parent ]
but how's that going to be convincing? (0.00 / 0)
I have a lot of concerns as I expressed last night. We don't know what she thinks, she has kept her mouth shut for political ambition, and I suspect she's more a politico than a brilliant legal mind (though I could be wrong.)  

But at the end of the day, how are we going to sell this argument:

Problem: She's no Thurgood Marshall.
Reply: She literally clerked for Marshall.

Problem: She's unqualified.
Reply: She has held important jobs and had the highest level legal student honors.

Fundamentally, she certainly is a Democrat and how are we going to sell that Democrats are not acceptable choices? You're talking triangulation like the appointment is Rick Warren or Ray LaHood or a non-Democrat. I just don't see how a fight is going anywhere.  

New Jersey politics at Blue Jersey.

[ Parent ]
Heath Shuler is a Democrat (4.00 / 3)
so is Ben Nelson

[ Parent ]
okay (0.00 / 0)
When we find a reporter comparing her to Nelson or Shuler, I'll know your strategy is working.

Look, I heard Obama praising Specter to the skies on the radio today so I don't take the trust argument either.  

New Jersey politics at Blue Jersey.

[ Parent ]
"how are we going to sell that Democrats are not acceptable choices" (0.00 / 0)
all of the shitty things Obama does?

[ Parent ]
I guess we're holding (4.00 / 2)
our fire till when Obama's debt commission comes for Social Security.  

[ Parent ]
If you want to defeat Kagan (0.00 / 0)
You would probably have to bite your tongue and remain silent while right-wing teabaggers complain that she is not a Protestant and that she might be a lesbian.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both

don't forget 'judicial activist'!! (0.00 / 0)

[ Parent ]
Tough call to make (0.00 / 0)
she's not a judge, so what part of her record would be used to make such a case? Not that logic and reason are necessary for the Right, but its very hard to be an activist judge, if you are not a judge.

"It sounds wrong...
     ...but its right."

[ Parent ]
It's the Elites Giving Each Other Jobs (4.00 / 5)
Oddly enough, I'm in the middle of reading a Bulwer-Lytton novel from the 1800s and the parallels are rather blatant. People in power give their friends jobs. People in power help their friends be in positions to get jobs.

Meanwhile the other 95-99% of us who don't care (or don't have the opportunity) to brown nose some connected and/or wealthy member of the elite, we have to hope someone like Kagan isn't a disaster for our interests.

So, it's another case where Obama chooses the elites over the rest of us. What a surprise.

Maybe some future president will care enough about the rest of us to put a person on the court who has real world experience, not elitist experience, maybe someone from the middle of the country who didn't go to Harvard, Yale, Stanford, Michigan, or the usual suspects. Maybe someone who has experience in business or, god forbid, social work and/or teaching.

Sotomayor was one of those people... (4.00 / 1)
...but I guess that once was enough...

[ Parent ]
Soft and on the money, well said. (0.00 / 0)
Rhetoric is good, accuracy though is necessary.  


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
She was? (4.00 / 1)
She went to Princeton and Yale Law School.

[ Parent ]
Yeah, but (4.00 / 1)
She came from nothing from the Bronx. She wasn't an élite legacy like John Kerry or Dubya.

[ Parent ]
Everyone should be (4.00 / 3)
sickened by the effort to sell her, which has consisted of testimonials from people who know her, like Marty Peretz who, having encountered her at Harvard cockaill parites, says she a "brilliant conversationalist" and "funny" and authoritarian comments like this from leading (neo)liberal light, Matt Ygelesias:

"Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama."

Just trust Obama.
Don't worry: her friends says "she's one of us."


[ Parent ]
I think you're misinterpreting Yglesias' argument. (4.00 / 1)
I think he's just saying what the sycophantic argument would be; that doesn't necessarily make him a sycophant per se.

[ Parent ]
Ay, you may be right (4.00 / 2)
But why does he like and trust Clinton and Obama?

[ Parent ]
Hmmm... (4.00 / 2)
Here are my thoughts.

A. See David Sirota's "Partisan War Syndrome"

B. Perception > Reality.

That is all I have for now.

[ Parent ]
Eliot Spitzer: Elena Kagan Will 'Get The Fifth Vote' (4.00 / 1)

Not a sycophant.

I do not have a full idea of Spitzer's politics, but his populist anti wall street cred is undeniably strong.


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
As Greenwald says (4.00 / 5)
The miniscule chance for derailing her is over -- it had to happen before she was nominated.

At any rate, the strongest argument against her -- that she's a defender of indefinite detention and other gross abuses of presidential power in the context of the terror war -- a) doesn't sway most Americans b) doesn't bother most progressives, who've remained silent as Obama has adopted Bush's repressive, idiotic approach to national security. (The Kagan story pushed aside what was going to be today's lead story, Obama's taking a bite out of the Fifth Amendment.)  

Kagen (0.00 / 0)
takes the arguments for Roberts and Scalito and turns them back on the GOP.  She is so absurdly qualified that any argument against her will have to be on the grounds of ideology - and ideology seldom is enough to prevent the confirmation of a nominee.

My guess is that Obama thinks this appointment is similar to the appointment of the first African American justice, for reasons that are obvious.

There is no audit trail worth a damn on Kagen - which is not an accident.  What little I have heard about her makes me think that the idea that she will take the court to the right is absurd, but Supreme Court nominees have a tendency to surprise once they get the security of their lifetime appointment.  

Absurd? (4.00 / 5)
If she's noticeably less liberal than Stevens, if she's like Breyer, she'll move the court to the right.

If she votes with the court's conservatives on issues related to presidential power and the terror war, she could have a huge impact.  

[ Parent ]
Correct but (4.00 / 1)
Stevens is the most liberal member of the Court and he was appointed by a Republican.  The tendency has been for Democrats to pick safe, moderate choices and for Republicans to shoot the moon by picking ideological purists with little track record.  

The case for Kagan is that she is 50.  Others are older.  Though not nearly as ideological, she should be around for quite some time.  At the very best, she is (groan) our Clarence Thomas.  With five hard core conservative jerks the Court will continue to be a threat to personal liberty and a bulwark to corporations.  Until we get number 5, 1-4 may not matter terribly much.

The case against is that this is the best opportunity we are likely to have in the foreseeable future to select a liberal leader for the Court.  Why waste the chance with warm milk.  Obama had a chance to move the Court left oe at least keep it where it was.  He added diversity but did not help out ideologically.  Of course, imo, he's a corporate Democrat working to form.

[ Parent ]
Take A Deep Breath And Admit Ignorance! (4.00 / 1)
Some Liberals opposed the nomination of William Brennan too. Here's a short extract from his wiki-bio:

Brennan was named to the U.S. Supreme Court through a recess appointment by Dwight Eisenhower in 1956, shortly before the 1956 presidential election. Presidential advisers thought the appointment of a Catholic Democrat from the Northeast would woo critical voters in the upcoming election for Eisenhower, a Republican.

Brennan gained the attention of Eisenhower's attorney general and chief legal affairs adviser, Herbert Brownell, when Brennan had to give a speech at a conference (as a substitute for New Jersey Supreme Court Chief Justice Vanderbilt). To Brownell, Brennan's speech seemed to suggest a marked conservatism, especially on criminal matters.

Other factors playing into Brennan's appointment were his Catholicism, his status as a state court judge (no state judge had been appointed to the High Court since Benjamin Cardozo in 1932), and Eisenhower's desire to appear bipartisan after his appointments of justices Earl Warren and John Marshall Harlan II.

His nomination faced a small amount of controversy from two angles. The National Liberal League opposed his nomination because they thought he would rely on his religious beliefs rather than the Constitution when ruling, and Senator Joseph McCarthy had read transcripts of Brennan's speech where he decried overzealous anti-communist investigations as "witch-hunts." After a confirmation hearing in which Brennan defended himself against McCarthy's attacks and proclaimed that he would rule solely on the basis of the Constitution and not on Church law, he was confirmed by a near-unanimous vote, with only Senator McCarthy voting against him.

The irony of a Republican wanting to "appear bi-partisan" by actually appointing some moderate Democrat aside (it was a different world), Brennan was opposed by liberals. Yet he turned out to be the most influential liberal American of the 20th century.  

[ Parent ]
On what are you basing (0.00 / 0)
that statement?  Do you know what her position is on Substantive Due Process?  Do you know if she believes sexual orientation should be applied in cases involving equal protection?  Do you know what she thinks about the application of the first amendment to cases involving corporations? Do you know what she thinks about Miranda?

Here is the bottom line: you don't know the answer to any of these questions. Without knowing those answers you suggestion that you KNOW that she would the court right is based on nothing but your on view of Obama.

It is patent nonsense.

[ Parent ]
The Republican attack is on this area... (0.00 / 0)
They say she praised Thurgood marsahall too much (!!Whewn will they understand that attacking universally admired black Supreme Court Justices is not ther way to gain acceptance from non-racist non-white voters, who have become the majority) see here:
In its first memo to reporters since Kagan's nomination to the high court became public, the Republican National Committee highlighted Kagan's tribute to Marshall in a 1993 law review article published shortly after his death.

Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was "defective." She quoted him as saying the Supreme Court's mission was to "show a special solicitude for the despised and the disadvantaged."

Emphasis mine


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

[ Parent ]
It's "nonsense" (4.00 / 3)
to guess that someone who said she supports indefinite detention actually supports indefinite detention?

It's nonsense to guess that Obama picked someone sympathetic to his overly broad view of presidential power?

It's nonsense to guess that someone without a track record might be more conservative than Stevens?

It's all guesswork --that's part of the problem. There are plenty of candidates about whom we wouldn't have needed to guess.

I'm willing to bet that she turns out to be less liberal than Stevens. Are you willing to bet she won't be?

[ Parent ]
The only way Kagan goes down (4.00 / 1)
is if someone produces strong evidence that she is a lesbian.  Other than that, as many have observed, we know quite little about her.  

She did say that she thought members of Al Qaeda who weren't apprehended on a battlefield could be tried as enemy combatants, but even that is quite unclear as to her thinking on the potential legal reach of GWOT.

Here's a paper she wrote for the Clinton administration arguing for what she calls "presidential administration".  She argues that in the implementation of legislation "Congress generally should be understood to have left authority in the President to direct executive branch officials in the exercise of their delegated discretion."  This makes the interpretation of congressional legislation by the executive during the implementation process a form of constitutionally sanctioned regulatory regime.  Again, while its certainly troubling, as Walter Dellinger points out, this does not necessarily place her to the right of Justice Stevens.  

We do have very interested, long-time observers of this process like Glenn Greenwald and Joe Lieberman who believe Kagan will move the court to the right.  I tend to give chatter like this from such disparate quarters some credence.  However, given that, unlike Harriet Miers, she's clearly qualified, opposing Kagan on the grounds of her rather skimpy and cautious body of writings will not work here.  

What's depressing is that a closeted lesbian who believes in some form of GWOT and an expansive vision of executive authority hardly represents the best we can do in what will be the most favorable environment for confirmation of a liberal justice in the foreseeable future. While this is not a case like that of Harriet Miers, the comparison to her proposed nomination does point out some major differences between the parties regarding judicial nominations.   In the wake of the tremendous rightward shift of the Democratic party over the past forty years, there is no for lack of a better term "political economy of legal thought" that can produce another Brennan, Fortas, Douglas or their equivalents in the face of so many potential Scalias, Alitos and Robertses.

Hopefully Kagan will prove our suspicions wrong, but in the big picture, there is very little to like in terms of what this nomination says about the institutional state of jurisprudence on the left.    

Oh well (0.00 / 0)
Yet another disappointment.

How much of a discussion would be having (0.00 / 0)
If Kagan were replacing a conservative?

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both

I for one... (0.00 / 0)
...would be talking about it more.  With this 5-4 court, I think she being moderate as opposed to liberal make not one shred of difference.  The 5-4 conservative majority on most issues will remain and the 5-4 moderate majority on a few others will as well.

If we were replacing a conservative, I'd want a liberal Scalia.

[ Parent ]
obviously... (0.00 / 0)
getting a strong liberal would be ideal, but how sure are you that she'll be a "moderate"?

I for one have no clue, so please show me all the evidence you have and tell me where she would/could disappoint most?

[ Parent ]
For me its a matter of doubt (4.00 / 1)
There is no evidence either way, so I assume she'll be more moderate than liberal. That seems to be the trend in DC "leftists". Moreover, she was chosen by President Obama and nothing in his career or Adminstration makes me believe that he would appoint anyone other than a moderate.

Time will tell which assumptions are correct.

"It sounds wrong...
     ...but its right."

[ Parent ]
sotomayor is a moderate? (0.00 / 0)

[ Parent ]
The jury is still out on that appointment (4.00 / 2)
I don't think she's been in the USSC long enough to establish her positions. That said, "moderate" is a relative term. Sotomayor may be at the left end of the spectrum within the USSC, but considering that most of the DC establishment is to the right of most Americans - moderates suddenly seem liberal in the DC context.

"It sounds wrong...
     ...but its right."

[ Parent ]
hate to beat a dead horse... (0.00 / 0)
but let's take same-sex marriage as an example. Is Sotomayor to the right of the American people on that?

Or a better question for you, exactly what positions is Sonia to the right of the American people?

I'd still love my original post answered. I'd love to see evidence that clearly defines Kagan as a "moderate" and someone we should be wary of.  

[ Parent ]
My response: (0.00 / 0)
There is no evidence either way, so I assume she'll be more moderate than liberal.

Get it?

If not, try it yourself - provide evidence that Kagan is a liberal.

On Sotomayor: Please read my response. The jury is still out. Her mainstream views on gay marriage are a suggestion, but I need more evidence. You may have already decided, but some of us are more skeptical.

"It sounds wrong...
     ...but its right."

[ Parent ]
eh (0.00 / 0)
I'm not saying she is a liberal or otherwise. Not sure why you're asking me to provide evidence.

But I do hear some groaning around here about how she'll be a moderate.

So, I'll ask again, for those of you who are so sure of yourselves that she will in fact be a moderate, show me the evidence. I'd love to read her writings and see exactly what you're seeing/reading.

It's not too much to ask.

[ Parent ]
Turnabout is fair play (0.00 / 0)

"It sounds wrong...
     ...but its right."

[ Parent ]
I agree with Scotusblog...her views on presidential power (0.00 / 0)
are way overblown. A lot of the evidence on this issue is derived from what she's said and done as Solicitor General, where she's basically defending the views and positions of the administration. Even Greenwald, who's been her biggest critic, has ultimately said that she MAY be very liberal, but because she's a blank slate we can't take that risk. More importantly, Greenwald's problem with the Kagan pick was that Obama was also considering someone who was a sure thing for progressives, Diane Wood. And for what its worth, I agree with Glenn. But we should calm down with all the talk about her being a reliable conservative vote on certain issues. I think ultimately, Elena Kagan, like Sonia Sotomayor, will be a reliable liberal vote on almost all issues we care about.  

re: spitzer (0.00 / 0)
"She will get the fifth vote," Spitzer told CBS's Maggie Rodriguez. "To put this in the context of the Supreme Court, when she is on the court and she's looking for a fifth vote because she needs to get the majority, she will argue for a perspective that will get -- whether it's a (Justice Anthony) Kennedy or a (Justice Antoinin) Scalia, whomever it may be, she will be persuasive to get that vote."

this doesn't sound good to me. this is like spitzer saying 'she's no leftie.' I think the way to convince scalia to come over is not having a progressive pov.

oh c'mon (4.00 / 1)
he's making the case on how good her skills to persuade someone are.

it's fluff talk, but if it were true, all the better. But seriously, she's not going to be persuading the courts more right-wing members to become the 5th vote on much. That's just absurd.

[ Parent ]
re: persuasion (0.00 / 0)
does scalia seem as someone persuadable to you?

[ Parent ]
Maybe (0.00 / 0)
if you found a cilice with his blood on it.

"It sounds wrong...
     ...but its right."

[ Parent ]
i already (4.00 / 1)
addressed that in my original post.

But since you seem to have glanced over it, I'll repeat it. Spitzer's comment is fluff. If she could persuade a right-wing member to vote for progressive legislation, great. Of course Kagan isn't going to persuade Scalia or Thomas to vote with her. That's just absurd.

[ Parent ]
re: addressed (0.00 / 0)
But since you seem to have glanced over it, I'll repeat it.

yes, thank you

[ Parent ]
I think Greenwald's arguments on this (4.00 / 2)
have been dead on, but like him, I assumed that if this nomination couldn't be headed off before it was made, there would be no stopping it.

That said, I think we need to avoid two, not very helpful stances. One is the insistence that Kagan is the best nominee possible. If you believe that, fine, but if you are feeling the need to heap effusive praise on her to help her cause, I think that is counterproductive. For skeptics, these sorts of arguments are likely to be more frustrating than convincing.

The other thing to avoid is the idea that she must be stopped at all costs. The reason is simple - progressives are not in a position to stop this nomination, and the game is longer than one round.

Does that mean I think we should take this lying down? Certainly not.  During the Sotomayor process, I argued that we needed to take a longer view. Since then, the judiciary and the Constitution haven't gotten much attention, until now.  If we ignore these issues until there is a nomination, we can be sure we'll have no power once the nomination is made.

Conservatives made some very significant long term investments in constitutional politics, at both the elite and grassroots levels, when they found themselves in the wilderness in the 60s and 70s. This was helped along by an administration that was actually transformative, seeking to use its power to build the conservative movement.

There has been some talk about progressives / Democrats doing something in the last few years, but so far it has been largely talk. We need to find a way to redirect some of the energy over this particular nomination to these larger questions.

When the last seat opened up, NY's two senators wrote a letter to Obama promoting Sotomayor for the Court.  Anyone know of a progressive Senator who did the same for a potential progressive nominee?  Anyone know of a progressive Senator or other major Democratic party official who called on Obama to be bold with his pick?  I am frustrated with Obama, but the problems run much deeper than just him.

One more thing. If I had a Senator, they would be hearing it from me for their role in taking a huge risk with this nomination.  They would be hearing from me about the Party's complete failure to make a case for progressive constitutionalism.  It wouldn't stop this train, but it might help slow it down for next time.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


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