|Part 1: In The Stupid Zone With Larry Lessig
AMY GOODMAN: We welcome you both to Democracy Now! Let's start with Professor Lessig. Why do you support Elena Kagan as the next Supreme Court justice?
LAWRENCE LESSIG: Well, I think that from the experience I've had with Elena, which is now more than twenty years, I think that she has exactly the right values and exactly the right skill that this justice will need.
Translation: She's one of us, you know--the good guys, the Democratic Party elite, who
got us out of Iraq, broke up the big banks, saved millions of homes from foreclosure, reinstated Glass-Steagall Act, put millions of ordinary Americans quickly back to work despite Republican obstructionism, passed the Employee Free Choice Act, restored the rule of law, closed Guantanamo, repealed 'Don't Ask, Don't Tell, protected the environment our asses. You got nothing to worry about! (And by "you," we mean, "we!")
[LESSIG, cont:]This is the fourth justice in the non-conservative or non-right-wing bloc of this right-wing court. And what that means is she needs to have the ability to persuade the fifth, so that we can get five votes for values and positions that we believe in. And I think what she's demonstrated more than anything else is she has exactly that skill.
Two questions: (1) When is the last time a conservative made this argument to the GOP? (2) When did they finally fish him out of the East River?
This isn't just an idiotic argument--it's an argument so idiotic that even Republicans realize how idiotic it is, and it's all they can do to keep themselves from bursting out laughing whenever some brain-dead Democratic makes the argument. This argument is so stupid, one hardly knows where to begin. Do they think that the current Supreme Court lineup will stay intact until Keagan retires, some 25 or 30 years from now? Do they think Anthony Kennedy is just a good-natured, not-too-bright dinner guest that Kagen can charm with her dazzling conversation and good humor? Do they think a lack of clear judicial philosophy will be a selling point for him? ("Good Lord, that Justice John Paul Stevens guy was such a bore, what with his consistent philosophy, always citing precedent and stuff--not at all witty and refreshing like you, Elena! I'll agree to anything you say!") Of course there's no proof for this argument. It's not even coherent enough be properly called an argument. It's more accurate to call it a delusion. There's no more evidence for it than there is for Birtherism. And the logic is pretty similar, too: the more lacking the evidence, the more fervent the belief.
After Greenwald lays out the case that we don't know what to expect from Kagen, because she's left so little public record of her legal philosophy-including the following:
Tom Goldstein, who's a huge booster of hers, said that she's the nominee about whom the least is known since at least David Souter, and we know the huge surprise that he produced. And even her friend Jeffrey Toobin in The New Yorker, who knows her for twenty years, said he's happy for her personally, but he can't comment on her nomination, because in all that time he's never heard her express any opinion about any political or legal issue of consequence.
Goodman tosses it back to Lessig:
AMY GOODMAN: Well, what about that, Professor Lessig, of her being a blank slate or hiding her views over these years?
LAWRENCE LESSIG: Yeah, so, it's just wrong to say that she's been hiding her views. What she's been doing is doing her job. And I think what we need is a little bit of perspective here. You know, what's most important, in my view, about what the President has done here is he's appointed a non-judge, or he's nominated a non-judge to the Supreme Court.
Shorter Larry Lessig: I got nothin'. But I'll talk fast, change the subject and hope you don't notice.
[LESSIG, cont:And that's extremely valuable. This Court is filled with former judges. And if there had been a non-judge, if there had been Justice O'Connor, who had been a politician before, or even a Justice Rehnquist, this Court would not have made its blunder in Citizens United, because it would have had a broader perspective and understanding about the political system.
Now, every non-judge that you appoint, Glenn Greenwald could make exactly the same criticisms of. We didn't know anything about Lewis Powell, we didn't know anything about Justice White, we didn't know anything about Justice Douglas, we didn't know anything about Justice-Chief Justice Rehnquist, when they were appointed, because all of them had had an experience that was not the experience of writing opinions in a wide range of cases that every single judge does. Now, we can decide we should never have anybody except judges on the Supreme Court, but I think that would be a big mistake.
Somewhat longer Larry Lessig: Make me look stupid, will you? Well, I'll attack you as an elitist, the old-fashioned way: by putting words in your mouth!
[LESSIG, cont: Now, I don't know about Jeffrey Toobin, but I spent four years sitting across the table from Elena Kagan three days a week listening to her spout very strong and, in my progressive views, very correct views about a wide range of constitutional issues.
Translation: She's one of us, you know--the good guys, the Democratic Party elite... See above!
But not an elite like you!
[LESSIG, cont: She's written substantively about the First Amendment, which is an extremely important part of the Supreme Court's jurisprudence. And contrary to Glenn's characterization, her views about the president's power, in the presidential administration article, are views that liberals and progressives should embrace, because they are exactly contrary to the view of the right-wing Bush-Cheney doctrine that says the president can do whatever he wants, Congress be damned. Her view is the president has this power, but only so long as Congress grants that power to the president.
Note: This was the only substantive claim about Kagen's legal philosophy Lessig made in the entire interview, and given that Kagen wrote it before Bush-Cheney rolled out their novel legal doctrine, we have no idea what Kagen's response would be. Her boss sure seems to like it, even though he campaigned against it once upon a time. And he really likes her... "creative", "strategic" thinking...
[LESSIG, cont: So I think she has given us clear views in important areas. But more than that, she has spent her time, not blogging, not twittering, not trying to be out there in the forefront of every single legal issue, just doing her job, and doing it extremely well. She was an enormously successful dean, and she's been enormously successful in every single job she's had. I think progressives should be rallying around this woman and not making it seem like this is some kind of outrage that she has not spent twenty years writing opinions on a federal bench.
And not blogging or twittering, either! You damn elitist bloggers in your pjs!
When it comes his turn, Greenwald decimates Lessig's "argument" with his eyes closed:
GLENN GREENWALD: Nobody thinks that only judges should be appointed to the Supreme Court. That is a total straw man. You don't need to be a judge to leave behind a record of what you believe about the great political and legal issues of the day. We're talking to somebody right now named Larry Lessig, who has never been a judge, and yet has a very extensive record of scholarship to enable persons to know what he thinks about all of these matters. He's here debating it now. Look at the alternatives that people were suggesting to Elena Kagan, numerous non-judges such as Harold Koh or Pamela Karlan, professors who, unlike Kagan, have a very lengthy record of advocacy and involvement in political and legal issues of the day. Not only has she never been a judge; she's never really been a lawyer until she was solicitor general, in terms of being in court. So it's an absolute blank slate.
My point: Any nomination that reduces Larry Lessig to sounding as incoherent as Bill-o the Clown is not good for the Republic. The Republicans, maybe. But the Republic? Not so much. And defintely not good for the Democrats.
(And what was with that bit where he implied that Citizens United would not have happened if only William Rehnquist were still alive? This raises a very serious question: Where does he get his drugs?)
Part 2: Outside The Stupid Zone With Turley, LG&M, etc.
In addition to Jonathan Turley, as indicated by the quote at the top of this diary, and Glenn Greenwald, of course, Lawyers, Guns and Money has been a beacon of sanity this week, as Paul Campos and Scott Lemieux have been on fire. But I'd like to start off with a post by Scott at TAPPED, "Is Kennedy Easily Manipulated?", which goes after one of the central fairy tales of this nomination process. In it, Scott writes:
Is there any evidence whatsoever that Kennedy is susceptible to lobbying for votes, subtle or otherwise? A fairly large literature has emerged about the internal workings of the Rehnquist Court, and I've read a painfully high percentage of it, but I'm not aware of any documented case in which the influence of another justice has caused Kennedy to switch his views.
The most prominent case in which he switched his position after the conference vote -- the school prayer case Lee v. Weisman -- didn't seem to have anything to do with personal dynamics on the Court, and by all of the accounts I'm aware of William Brennan's attempts to influence Kennedy were a dismal failure. I'm happy to be corrected if anyone has an example, but I don't know of any actual evidence that brown-nosing can win Kennedy's vote. I think part of the problem -- which was also true of Sandra Day O'Connor -- is that some Court observers conflate moderation with indecisiveness. Just because a justice's votes are less predictable than some of their colleagues' doesn't mean that they are to be subject to manipulation.
This point isn't just about Kagan. I agree with Dahilia Lithwick that this also largely applies to Diane Wood, who has demonstrated some ability to influence conservative colleagues in a more relevant context. How interpersonal relationships will play out is nearly impossible to predict, and the effect in any case is likely to be trivial.
Like the Bush/Cheney war for the war in Iraq, the Obamabot case for Kagan is almost entirely fact-free, with the factual vacuum filled by an endless flow of testimonials of from her social classmates. Last weekend, when the nomination had been pre-announced, Campos wrote about this quite perceptively ("Being There, Elena Kagan edition"):
Some thoughts on the impending nomination.
The wildly contrasting impressions about Kagan can be easily reconciled if one assumes that people who know Kagan are simply projecting their own political inclinations and commitments onto her. This is an extremely common phenomenon: if you like someone and believe she is fundamentally a good and fair-minded person, while at the same time knowing nothing about her own politics, it's the most natural thing in the world to attribute your politics (for after all, are you not eminently "fair-minded" on all sorts of difficult political questions?) to her. Thus naïve progressives assume a Justice Kagan would be lion of the left, despite the profound affection she elicits among establishment and conservative figures (and the checks she's cashed while consulting for Goldman Sachs), while conservatives assume she will be a "good liberal" (which is to say not very liberal at all).
In this sense, Kagan is a much more extreme version of her former University of Chicago colleague, Barack Obama. As an elected politician, Obama has not of course been able to go to anything like Kagan's lengths in avoiding public positions on controversial issues. Still, a year and a half into the Obama administration, progressives continue getting a rude surprise every time Obama does something profoundly objectionable to the left wing of the Democratic party - even though evidence of Obama's supposedly progressive political agenda has always tended to consist of little more than wishful thinking.
I could go on and on, just strining together their perceptive posts, as they've various shown that the liberal arguments for Kagan are the conservatives arguments for Kagan:
He's your president not your boyfriend
I'll be doing an interview regarding this topic on the Michel Martin's NPR show Tell Me More at 11 AM EDT tomorrow. The other guest will be conservative law professor Stephen Bainbridge.
I'll be arguing that Kagan's nomination should be opposed because she's a blank slate who could well move the court to the right, while Bainbridge will be arguing in favor of the nomination because she's a blank slate who could well move the court to the right.
Or that this rare opportunity to confirm a strong progressive judge is one that should not be squandered ("You don't waste a pick on a blank-slate centrist when your position in the Senate is about to get dramatically weaker.").
Part 3: Why?
So let's just accept it as settled, there is no sense to this nomination above and beyond the career advancement of a Democratic establishment insider. Given that the likes of Larry Summers and Robert Rubin also fit under that rubric, there is nothing the least bit comforting about this.
The question then, is why? Why the nomination, and why the support from supposedly liberal types who usually know better (which is why I picked on Lessig to begin with).
This is where I bring in the framework I fleshed out in my previous post, which I shameless reprise in its entirety--this time with express purpose of focusing your attention on what it means for the Supreme Court and the nomination process:
(1) Narratives matter. The conservative narratives are pure hokum. But people are wired to understand the world in terms of stories. And they aren't nearly so well wired to understand stories in terms of logical consistencies or contradictions. So "pure hokum" beats "no narrative" every time.
(2) Narratives naturally tend to revolve around individuals, hence stressing matters of individual character, personal good and evil, etc. They involve larger groups (up to and including the whole of society) only by extension and accretion. Hence conspiracy is the most natural way for them to deal with complex social phenomena that is actually too complex to understand in individual terms--just as the temperature of a substance is too complex to understand just in terms of the movement of individual molecules.
(3) Thus, narratives can take the place of classical ideology, understood as a coherent theory of the whole. Classical ideologies in this sense are level four phenomena in Kegan's typology of levels of cognitive development. They represent systematic abstract thought applied to the political sphere. Their most natural form--in light of Kegan's self/object structure at level four--is the historical core of liberalism: the autonomous individual consensually engaged in reshaping social practice through secular law, for secular ends. Narratives, in contrast, first arise at level two, but only as a series of occurrences (ask a child of certain age what a movie was about, and you'll hear what I mean). At level three, narratives acquire meaning and purpose, as well as the capacity to define reality (as in creation myths and the like).
(4) Conservatives use such narratives-in-the-place-of-classic-ideology strategically in hegemonic struggle to paper over their own internal contradictions, and to represent liberals as a monolithic other. They play a crucial role in Supreme Court nomination struggles, as we are now witnessing, and as I shall discuss in another diary later on today.
(5) The idea of a perfect past world lost is easier to grasp than the idea of a future perfect (or rather more perfect) world. The idea of how the perfect past was created can simply be ignored, or rendered in unrealistic cartoon form. But the task of creating a more perfect future requires realistic considerations: engagement and technical competence, rather than fantasy and escape.
(6) The idea of a perfect past world is made even easier to embrace with invocation of an all-knowing, all-powerful leadership. The perfect past and authoritarian leadership make up a natural pairing. In turn, the embrace of an all-knowing, all-powerful authoritarian leadership serves to help expunge all worrying doubts about things that just don't fit. This is further buttressed by own individual pasts: The imaginary perfect past is our own personal childhood writ large.
(7) The repeated and unchallenged invocation of the conservative narrative creates a purportedly "neutral" framework--such as "strict constructionism", defining any hint of "liberalism" as a dangerous deviation. The only safe way that liberalism can be invoked is by pretended adherence to the "neutral" framework, which is, of course, anything but nuetral.
(8) The purportedly "neutral" framework allegedly ensures fidelity to the founding purposes of the political and/or religious order, as defined by conservative narratives/myths.
America is being turned into authoritarian state, and the Obama Administration is actually taking it farther in that direction in some respects than the Bush Administration before it. But that is only the tip of the iceberg of this much broader, deeper and more troubling direction. Under the influence of conservative narratives completely displacing liberal ideologies (plural intentional) from the legal/judicial discourse, a complete hegemonic conservative takeover is continuing apace, despite the electoral rebuke by voters in the 2008 election. In fact, the bottom line here is that the Democratic establishment has completely embraced the hegemonic conservative Republican worldview. Tradtional liberal ideas are, quite literally, unthinkable for them.
Which is why they need to be driven from power. There is no other way.
Of course, we must also re-educate ourselves about what has been lost and forgotten. It's not enough to get rid of folks standing in our way if we don't know where to go once they're gone. But this should serve as the clearest of wakeup calls to the enormity of the obstacle before us constituted by the Democratic establishment.