Kagan nomination folly: Playing by conservative rules makes you stupid

by: Paul Rosenberg

Sat May 15, 2010 at 16:00


"I wanted to retire five years ago. But I waited for a Democrat. I wanted a Democrat. Hmm! And instead I got you."
    -- retiring Supreme Court Justice Joseph Crouch, The West Wing, Season 1, Episode 9, "The Short List".

"For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial - agreeing with the Bush Administration."

Why is the stupidity level over the Kagan nomination so high?

First, to establish that the stupidity level is so high, I will consider Larry Lessig arguing against Glenn Greenwald on Democracy Now! this past Wednesday.  Since Larry Lessig is by no means stupid, the fact that he's acting so stupid--simply repeating mindless talking points that any one of a thousand Democratic surrogates could say as well as he can (except for knowning her personally)--is a very good indicator of how bad things have gotten...within just two days of getting started.

Second I will offer two explanations:

(1) Because it's Versailles, and just because they can be so stupid.

(2) Because no one wants to face up to just how truly terrible a president Barack Obama is turning out to be--we're talking potential Herbert Hoover territory, folks.

In turn, to understand why Obama ia potentially such a disaster, we can look to his career-making speech at the 2004 DNC, which millions of liberals took as clear evidence that Obama was one of them, while millions of conservatives drew the same conclusion. It's now clear that the conservatives were right: with few, if any, exceptions, all his liberal impulses are expressed in terms of a political and conceptual framework defined by conservatives.  (Conservatives themselves may not like his choices, but heck, they'd defeat Ronald Reagan in a primary if he were alive today--if he didn't pull Charlie Crist on them first.  He is, in short, a Reagan Democrat.)  And thus he follows the Supreme Court rules created by conservatives: (1) No ideology on the court. (2) "No ideology" means "strict constructionism" "calling balls and strikes" "insert your conservative buzz-phrase here".  He does not challenge the conservative rules, because he believes in the conservative framework, here in dealing with the Supreme Court, just as he believes in the "long war" approach to terrorism, and just as he believes in balancing the budget, provided that the bottom 99% pay the vast majority of the bill.

Paul Rosenberg :: Kagan nomination folly: Playing by conservative rules makes you stupid
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.


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Conservative geography (4.00 / 2)
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?

It wasn't the East River they fished him out of, it was the Pecos.

In the latest conversation between Lessig and Greenwald, which the NYT now also links to, Greenwald made one throwaway comment which, if heeded, would put the whole rest of Lessig's dance in context. In answer to Lessig's mealy-mouthed and fearful warnings about the consequences of a genuine political position: What you say may be true (about why its politically difficult for a Supreme Court nominee to say anything meaningful in confirmation hearings) but until people step up and start changing things, things won't change.

The truth is, that if the Republicans claim all the land, we just have to become squatters, no matter how undignified it makes us look -- eh, professor Lessig?


Haste makes waste (0.00 / 0)
Sorry, but that should have read: ...Glenn replied: What you say may be true...

[ Parent ]
Yeah, I Knew The East River Sounded A Bit Off Culturally (4.00 / 1)
But c'mon!  It's Rudy Guiliani country, dude!

Not to mention Fred Thompson--on the TV!

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
More like Charleston harbor (0.00 / 0)
Or perhaps Lake Hoover.

"Those who stand for nothing fall for anything...Mankind are forever destined to be the dupes of bold & cunning imposture" -- Alexander Hamilton

[ Parent ]
Forceful words (4.00 / 5)
I agree with your analysis of Obama's repeated 'assimilation' of conservative ideas and principles.  Even the few times his political platform has overlapped with more genuinely liberal objectives, it has been driven by the wrong framework.  Liberals may have won a battle of sorts in electing Obama, but ultimately, in the long-term they may have lost the war.  Obama is triangulating in every possible area (court nominations, charter schools, administrative law, health care, war on terror etc.).  By repudiating an unabashedly 'liberal government framework' and espousing Sunstein's ivory tower, minimalist approach, which is essentially a variant or permutation of the Chicago school law and economics theories, Obama has assumed the conservative mantle in the long term battle for the nation's ideas and mentalities.  The election of, and perceived betrayal of the progressive base by Obama, has essentially defanged the left entirely - without the democratic party, there are no mainstream vehicles for disseminating progressive ideas.

Raw Material and Distancing (4.00 / 2)
The failure of Republican ideas over the past three decades still provides a political and social opportunity for traditional Democrats. But these Democrats have to take the party back from the DLC and moderate Republicans who run the Democratic party. It's focus: traditional Democrats do things that mostly benefit working people and small business while Republicans focus on large corporations and the wealthy.

Obama's failure to be anything but a moderate to conservative Republican, while claiming to be a Democrat, is something the rest of us need to distance ourselves from. We've got Krugman and a few others pointing out the disparity between Obama's political affiliation and the focus of his policies. But we need all traditional Democrats to make this difference clear to the media and the public, early and often. Otherwise, traditional Democrats will be deemed a failure equal to the Republicans despite never having had the opportunity to govern.

It boils down to Paul's final point: we have to drive from power these faux Democrats, these DINOs. A huge part of that will be to educate and convince the public and the media that Obama is not a Democrat no matter how much he calls himself one: his policies benefit the wealthy and large corporations and other Republican interest groups for the most part. His sops to working people are no more than a moderate Republican would make to ease their conscience.

Great post, Paul, thank you!


[ Parent ]
Wonderful post (4.00 / 1)
Your analysis is spot-on.

Agreed, great post (4.00 / 5)
What I find especially amusing is the sudden claim that the most important thing  is not that the nominee be a powerhouse intellect or an ideological counterbalance to heavyweights Scalia and Roberts, but that the nominee be able to be a consensus builder who can woo Kennedy.

Amusing because it mirrors the discredited claims about the power of Obama's bipartisanship, and because it assumes that Kennedy would be swayed not by forceful intellectual arguments but by, I dunno, the things that her many friends find so appealing, and because it neglects the very clear evidence that on many terror war related issues, she'll vote with the conservatives.  


[ Parent ]
Lawrence O'Donnell said that (0.00 / 0)
that infamous conversation with Sen. Graham on her SG confirmation hearing was not really her, but just saying something to get through the hearing.

[ Parent ]
And That's Supposed To Be A Good Thing? (4.00 / 2)
I remember seeing him say that, and I went, "Huh?"

Usually O'Donnel's the guy rolling his eyes when someone else says stuff like that.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
In other words, she was being gas-lighted by Graham (0.00 / 0)
And said what he wanted to hear to get his support.

[ Parent ]
Like I Said... (0.00 / 0)
above.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
She seems to have been telling (4.00 / 6)
people what they wanted to hear for the last 20 years.

I guess she's been hoarding all her principle and courage and will unleash it once she's on the court.


[ Parent ]
Let's hope she's inherited Thurgood Marshall's jurisprudence. (0.00 / 0)


[ Parent ]
Home Run as usual, Paul (4.00 / 1)
Let's face it. The reason this is such an atrocious nominee, and the reason for the immediate comparison to Harriet Myers, is that this is a completely substance-less nomination. Obama knew who he wanted long ago when her name was first floated. Then they went through the sham "short list" interview dance, which was never going to result in a different nominee.

This selection has zero to do with qualifications and everything to do with the same old cronyism.


maybe it has (0.00 / 0)
a LOT to do with qualifications AND cronyism.

but 0?  


[ Parent ]
There's a huge difference between her and Miers. (0.00 / 0)
Miers was a complete idiot, Kagan is not.

[ Parent ]
I'm not talking about intellect (0.00 / 0)
I'm talking about cronyism

[ Parent ]
Adding a new swing vote (4.00 / 3)
The question isn't how well she persuades, but rather how persuadable she is. My worst fear is the reverse reach-out, where Kagan becomes another swing vote reachable by the dark side of the Court. A new O'Connor on the Court is not 'Change we can believe in.'

...Adding, the ability to persuade is a skill-set, not an ideology. The notion that centrism is required to persuade is the ultimate Versailles myth.

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


After hearing her present arguments to the Supreme Court (0.00 / 0)
I can't imagine her persuading a drowning man to grab a rope. She's Obama's crony. That's the long and short of it. All these nebulous "justifications" for her nomination are just rationalizations with little substance behind them.

[ Parent ]
Lessig isn't stupid, he was merely BEING stupid--knowingly and deliberately (4.00 / 1)
Not for the sake of being stupid, of course, but because it couldn't be avoided in the furtherance of what is to him and people like him far more important than not being stupid. Namely, personal, professional and tribal self-preservation and advancement--in his case the Versailles tribe, center-right liberal establishment contingent. He was protecting his own, just like he'd expect to be protected by his own in turn, if it was called for. That he sometimes might stray from the tribe is irrelevant. He's part of the tribe and he any everyone else knows it. We are also part of a tribe, of course--the progressive netroots tribe. But while there's some crossover with his tribe, these are basically two distinct tribes.

And Lessing was merely being stupid. He was being dishonest, and he knew it.

All is fair in love and tribal self-preservation.

"Those who stand for nothing fall for anything...Mankind are forever destined to be the dupes of bold & cunning imposture" -- Alexander Hamilton


But He's Someone We'd Expect Better From (4.00 / 2)
He's not entirely of Versailles, not by a long shot.

Or so we thought.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
But we also expected better from Obama (4.00 / 2)
Who wasn't always of Versailles. They're both the sort of wishy-washy progressive who said and did all the right things and promised to never join up with The Man...up until the moment then it was no longer just a theoretical temptation, but an actual one, at which point they caved liked a bat into hell. My reading of Lessig is that he was effectively presented with the opportunity to join the Village, cashed in his credibility, and went over to the other side.

There are all sorts of credible (if ultimately unconvincing) arguments one can make to support Kagan. Lessig chose to make none of them. And it was a choice, not an echo. ;-)

"Those who stand for nothing fall for anything...Mankind are forever destined to be the dupes of bold & cunning imposture" -- Alexander Hamilton


[ Parent ]
Stupid (4.00 / 3)
To see just how stupid Obama's selection of Kagan is, look at his own words:  "one of the roles of the courts is to protect people who don't have a voice. That's the special role of that institution. The vulnerable, the minority, the outcast"

And yet he refuses to consider nominating a liberal.  THAT makes sense.  

http://www.slate.com/id/225382...


Kagan is a liberal. (0.00 / 0)
And might I remind you that Stevens started off a conservative.  In the late 70's, he opposed things like affirmative action.  He changed over time to be what he is today.

[ Parent ]
Be that as it may.... (0.00 / 0)
What's with the handing out to troll ratings to other commenters just because you (presumably) don't agree with them? Believe me, it doesn't help your argument, if indeed you have one to make. How do you know that Kagan is a liberal? That's what's at issue here.

[ Parent ]
She co-wrote a letter in 2005 to Graham (0.00 / 0)
making a strong argument against cutting rights of the accused.

What she said in her SG confirmation hearing to Graham was because she was being gas-lighted by his obnoxious hatred of human rights.


[ Parent ]
Mmm.... (4.00 / 3)
Score one for her. Now, what about things like her 1995 characterization of the Supreme Court confirmation hearings as a vapid charade, until she wound up in the hot seat herself. Shall we give her a pass on that?

No matter how clever they believe themselves to be, people in politics are must eventually accustom themselves to saying what they mean, and damn the personal or party consequences. Otherwise, a) no one will ever trust our national dialogue, b) no issue of importance will ever be presented honestly to the people, who'll be left reading tea leaves, as they are here, and c) belligerent defenders of the indefensible will always be able to claim political expediency as the reason for their atrocities, as our President -- who after all, nominated Elena Kagan -- routinely does.


[ Parent ]
William's Right (0.00 / 0)
Please remove your troll rating.  That's not what it's for.  When you disagree with someoone, just say so.

Troll ratings are for people who are disrupting the discussion, not for those who are espousing a different view.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
That's why I removed the troll ratings. (4.00 / 1)


[ Parent ]
Now William... (4.00 / 1)
what about you troll-rating me?

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Boy, is MY face red! (4.00 / 1)
I've been making more than the usual number of typos and grammatical errors today too. Maybe it's because I'm trying at the same time to edit a video.

It's a very interesting video, too -- a debate between the two Democratic and two Republican candidates for Arizona State Superintendent of Public Instruction sponsored at a local school by the Arizona School Boards Association. Trust me, a clearer contrast between red and blue philosophies of education would be hard to find.

I may put a link to it in Quick Hits when I get it up on YouTube. In the meantime, I'm profoundly sorry for what a commenter on GG's blog once called my fyslexic dingers.


[ Parent ]
Can you explain this for me? (0.00 / 0)
And might I remind you that Stevens started off a conservative.  In the late 70's, he opposed things like affirmative action.  He changed over time to be what he is today.

I keep seeing people make this claim. But no one seems to spell out the conclusion we're supposed to draw as a result.  Why is it important to remember this? (I say this as someone who is well aware of this, but just doesn't see its relevance.)

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.


[ Parent ]
Seriously. . . it's a silly argument. (4.00 / 1)
Stevens was a conservative. . . big deal. Reagan and Phil Gramm were once Democrats. Hillary was a Goldwater Girl. Just because others have changed their stripes over the years doesn't mean everyone does - nor that they change in the same direction. She could just as easily move farther to the right.

[ Parent ]
Or maybe what they're trying to say is. . . (4.00 / 3)
we know she's flawed and imperfect, but pass her now and we'll fix her later?? LOL

[ Parent ]
Stevens Was Never A Conservative (4.00 / 3)
Not in the sense the word is used today.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
A general thought about this post (0.00 / 0)
I used to think I was a liberal, but I've realized that I am a moderate.

To me being a moderate is when you get beyond black and white fundamentalist thinking.  Hate person A love person B.

I think that if you hit people age 45 or so and above then there are a lot more fundamentalists.

The younger generations are a lot more moderate and Obama reflects that.  I think thats because now it is easy for everyone to go online and get their beliefs challenged.  So people who are still forming their beliefs go online and don't get the pure clear message of one ideology that they used to.



http://transgendermom.blogspot....


Evidence Much? (0.00 / 0)
This may seem like a sensible argument, but the decline of the networks as a dominant news force means that more and more people listen primarily to news sources that more closely reflect their views, which has the exact opposite effect to what you're suggesting.

Thus, you really need to look at some data, rather than arguing what must be the case.

Though it's hardly dispositive, a quick-and-dirty look at 18-30 year olds during this decade vs. 50-65 year olds using the General Social Survey doesn't show a depolarization in ideological identification so much as it shows a decided shift to the left. Among 50-65 year olds, self-identified conservatives outnumbered self-identified liberals by 39.6% to 24.7%--just over 3-2, which is pretty much what the ratio has been on average for the last 30-40 years or so.  But among 18-30 year olds, the ratio is 28.1% to 32.6% -- a slight edge for self-identified liberals.  Which is much more liberal than the older population.

p.s. And, to be honest, Obama is not so much a moderate as he is a centrist ideologue.  The two are not the same.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Problem? (0.00 / 0)
Obama is over 45 years old. Doesn't fit your scheme.

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


[ Parent ]
Details, Details... (0.00 / 0)
Your hangup on facts is sooooo 20th Century!

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Child of the '60s (4.00 / 1)
can't help myself. My brain is myswired from all the fluorine treatments.

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


[ Parent ]
This is a great illustration of how (4.00 / 6)
hegemonic narratives work.  Those with power get to deploy arguments is this fashion - whatever claim help maintain the existing power relations are considered legitimate, whatever claims that challenge those relations are not.

And so the Bush Admin could claim that human rights violations committed when Iraq was a US ally decades earlier, or the possibility that WMDs might be developed and then passed on to a group that was hostile to the Iraqi regime, justified an invasion. Then soon afterward the invasion was about democracy promotion and old claims fell by the wayside.  And of course, when those claims proved problematic, they too were abandoned, and none of them animated policy one whit.

What you cannot find there are any general principles that could be used in another case, only a specific claim that could be deployed or not as it served the interests of those in power.

The same of course, holds here. Numerous claims are thrown out without any mooring in some general principle that could be used in another case.  It is a performance of the powerful, not a reasoned argument. Facts have nothing to do with it.  Power does.

Which leads me to another point.

"Why do the conservatives always get the conservatives but we don't get to get the liberals [on the Supreme Court]," Iowa Democratic Senator Tom Harkin complained to Politico before Kagan was nominated.

Why on earth does Harkin think the solution to this problem is to complain to Politico?  Are we really reduced to this? It's clear that unless the Democratic caucus, even the "good" ones, feel the heat over this sort of capitulation, they will not work to fix the problem.  Enabling bad behavior is all too common, and if they continued to do it, then they are responsible for the outcome.



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.


True (4.00 / 2)
If Harken were to declare his intention to fillibuster, then someone might pay some attention to him.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Another thing he might do (4.00 / 2)
is push to get other progressives through the Senate faster, like Goodwin Liu.

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.

[ Parent ]
What you are talking about is the Dominating Discourse (4.00 / 1)
which Rove is a master at. It is framed and we argue the points but not the framing. Whoever establishes the framing for any particular topic is controlling the discourse. Facts have nothing to do with it as you say.

The problem cannot be fixed until the Discourse is challenged and changed.

Ideology is a discredited philosophical argument. Hegel is dead. And I am saying this after I became a true Obama believer and helped elect him. Two days after he was in the WH I knew just by his cabinet picks. And my red neck Ozark neon red town neighbors knew it that fast too.

They say What Change? Ha ha. The Clinton people are back in.

I despise Obama far more than Bush. Bush can be considered a good president by virtue of the fact that he got his agenda through with no big majority in Congress. Maybe by lies, but he was not the first to do that. The point is that he changed the country with his agenda. For the worse to be sure, but he prevailed, to use his term.

Obama can't even get his dick up. See, I read the Rude Pundit faithfully. O is a premature ejaculator. He shot his wad when he won and everything has been soft since then. We cannot expect anything from him and he needs to be shown at the polls how much we think he sucks. No progressive in the future will copy his behavior and lose their base so thoroughly.

No dem will challenge him so I guess it is going to be a repub who beats the shit out of him. His father threw everything away and so did his grandfather. Those are his models. He is emulating them. Have it all then capitulate from the top.


[ Parent ]
Foucault on Classical Ideology (4.00 / 1)
is Classical Discourse based on Representation. Ideology is trying to save it. Over and done with.

Obama is not turning out to be terrible either. (0.00 / 0)
Sure, he's not at all ideal, but he has helped the economy a lot, signed a lot of good legislation, removed sexual discriminatory policies from staffing policies, removed the ban on flight for people with HIV/AIDS, and is now working to pass a comprehensive financial reform package to undo the damage done by Rubin, Bush, Summers, and most of all, Greenspan.

Never have so many (4.00 / 2)
been given so much and made so little use of it. Someone else said something like this paraphrasing Churchill.  

Your accomplishments attributed to O are so paltry considering his fantastic campaign and win. With a majority in both houses of Congress he could have had it all.

As I have said. He blew it. A Premature Ejaculator's behavior pure and simple.


[ Parent ]
Losing Your Home (4.00 / 1)
but making the kids happy with donuts is not exactly what I'd call success.  I know YMMV, but this is just ridiculous.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Proto-fascism with a stronger safety net (4.00 / 1)
is what I see Obama as offering. Intellectually. I haven't quite resigned myself to it emotionally. But really, doing seemingly liberal things like trying to improve the health care system is not inconsistent with a deeper authoritarian worldview.

[ Parent ]
Three comments (4.00 / 2)
though I disagree with the vast majority of this piece:

1.  The difference between Lessing and Greenwald really comes down to one thing: Lessing knows her and Greenwald doesn't. Lessing thinks he knows what Kagan believes, and Greenwald doesn't really have a clue.  Kagan has indeed intentionally hid her views - something that everyone in elite institutions has done since the Bork nomination - whether they are on the left or the right. Hell, Roberts and Alito wouldn't even say what their opinion of Roe was.

Their (Lessing and Greenwald's)exchange is pretty stupid at the end of the day.  I think, based on what I have heard about her, that the notion that she will certainly move the court to the right is unadulterated bullshit. Such a conclusion assumes facts clearly not in evidence. We don't know where she stands on Substantive Due Process, or on Equal Protection, or on most of the core issues of controversy that the Court confronts.  On this score what Greenwald writes is indefensible, since he later notes he doesn't know what she thinks.

Having said that, it makes sense to make noise from the left, since the only place to put pressure on her is during her confirmation hearings.  Getting her on the record on Roe, on equal protection, on Miranda strikes me as a useful exercise, and will make it harder to backtrack if she is so inclined.  

2.  The idea that Obama is a second Hoover is absurd on a ton of different levels, much of which I have described here in the past.  I will note that unemployment appears to have peaked a level far below what was predicted here last summer, and the recovery, for all its problems, is in fact remarkable given the scale of the crisis that came before.  I would have done more, and I don't think Obama has a clue about globalization but comparing him to Hoover doesn't stand even a cursory examination of the facts.

3.  If there is to be a liberal critique of Obama that matters in any real way, it will have to begin by defining the conditions under which a primary fight will be waged against him in the primaries.  Obama has already signed on to Iowa and New Hampshire going first again, an idiotic decision close to political malpractice, for history since 1968 is full of examples of challenges waged against seemingly certain nominees.  

The problem, of course, is that Obama is very popular in the party, and making a frontal assault on him likely would wind up marginalizing those who are trying to attack Obama. It is pretty obvious to me that some in the blogs are trying to create a narrative that might allow a challenge, but I think they are badly misreading what it would take to actually be successful.    


The photo with Kagan looking adoringly at Obama says it all (0.00 / 0)
A picture is worth .....how many hundreds or thousands of words?

[ Parent ]
What I Meant By The Hoover Comparison (4.00 / 5)
Although a double-dip recession is still quite possible, and millions more are still unemployed than should have been, it's not his economic malpractice in dealing with the Great Recesssion that I'm talking about--at least not in isolation.

I'm talking about the larger failure of imagination--the failure to realize how fundamentally business-as-usual had failed, and the need to try all sorts of things in order to discover what might work.

If the economy were the only problem we faced, then I could accept your analysis as plausible, but really, the economy is but a symptom of the aystemic rot that has overtaken our country from the top down. And Obama has proven himself to be part of the rot, incapable of any sustained critical reflection on it.

As to your other two points:

(1) Stephens was the leader of the so-called "liberal wing" of the Court.  Anyone less liberal than him will move the Court to the right.  And there's plenty of reason to believe that Kagan is less liberal than him.  They're not the sorts of solid on-the-record paper trail reasons that we'd like to have, but they are resons, nonetheless:  her history of kissing up to conservatives, her history of hiring white males in large numbers, the very fact that she has hidden her views (as Greenwald points out, Lessig himself has not), her willingness, more broadly, to "play the game".

We could be wrong, of course.  But the point is, with 59 seats, why gamble????  Put someone on the court with a history that shows they have the values, inclination, and intellectual firepower to be a leader, like Stephens.

(3)  My point here is not to mount a primary challenge. It's much more modest:  it's to clarify WTF is wrong with Obama. To cut through the haze in a poltically and intellectually clarifying way.  Whether or not there is a primary challenge, there defintely needs to be a coherent resistence to his mind-numbing folly.  First things first.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Another thing on the unemployment issue (4.00 / 3)
It's all well and good to make statements like

unemployment appears to have peaked a level far below what was predicted here last summer, and the recovery, for all its problems, is in fact remarkable given the scale of the crisis that came before

but the fact is that the unemployment rate is still 10% and our political and economic leaders, including Obama, believe that this is not a problem they need do anything more about.

I don't think anything could better illustrate Democratic leaders' acceptance of right-wing economics (its all "structural") and politics ("people want to see deficit reduction") than the acceptance of the idea that what once would have been considered Depression-levels of unemployment are just not a problem that can or should be remedied though policy.  


[ Parent ]
Precisely (4.00 / 2)
This is what hegemony is all about.  Ideas that a Republican president like Eisenhower--hell, even Nixon would have regarded as political poison are now accepted without question by the Democratic establishment.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
Facts not in evidence (4.00 / 4)
1) It's certainly true that Lessig knows her, and Greenwald doesn't, but there is no evidence, nor have you provided any argument, to support the claim that this means that Lessig's knowledge explains the difference. Greenwald has been extremely clear about the standards he uses to make his judgments, and how he applies them. They do not depend on this sort of personal knowledge - thankfully. I have no interest in turning over such important questions to elite law professors who can assure me it will all work out. That sort of thing (not limited to judicial nominations) has a terrible track record and is undemocratic. And as Paul points out, Glenn said repeatedly that there was a great deal we didn't know and he was trying to piece together what little evidence there was while fully admitting that his claims concerning her views were tentative.

If you have a dispute with the actual arguments Greenwald made, then let's hear it. What is indefensible is to complain about claims he did not make and pretend that only people that know a nominee can be a part of the conversation.

2) This misses the point.

Kagan has indeed intentionally hid her views - something that everyone in elite institutions has done since the Bork nomination - whether they are on the left or the right. Hell, Roberts and Alito wouldn't even say what their opinion of Roe was.

This is not true. The alleged short list contains numerous people from elite institutions who did not hide their views. It also contained judges who made no attempt to hide their views.  Besides that, no one who paid any attention was confused about where Roberts and Alito stood - that they made some efforts to obscure it for show is besides the point. Conservatives were correctly confident that they were getting two of their own. While many of the elite legal liberals who are telling us that this nomination is so great also told us that Alito was no ideologue, that didn't mean there was any reason to believe it. Rather, its reason to not defer to them now.

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.


[ Parent ]
Obviously (4.00 / 1)
Those other folks on the short list were not doing their job, as Lessig would have it.

Especially those judges.  How much difference is there, really, between PJs and judicial robes?

Either way, no dazzling social skills their personal friends can beat you over the head with.  What kinds of nominees would they be?

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
Not realizing Obama's a Republican makes YOU stupid. (0.00 / 0)


Saying he is a Republican makes you immeasurably stupider. (4.00 / 1)


[ Parent ]
On April 9, I posted: (4.00 / 1)
He'll choose a center-right, corporatist mediocrity (4.00 / 1)
who will stir up the Right for not being 'conservative' enough, but will ultimately get the nod.

Those of us who saw the Warren Court saw the BEST the SCROTUS can be.

We'll NEVER see the like again...

Sadly...
by: konopelli @ Fri Apr 09, 2010 at 18:58


how exactly is Kagan (0.00 / 0)
a "corporatist mediocrity"?

[ Parent ]
All she's ever done is raise money (0.00 / 0)
She knows how to placate and appease wealthy, powerful people. And raise money from corporations. And appear to be resolute while caving in sotto voce. All useful Corporate skills, but not those of an advocate of the People, of which she is replacing an aging and reluctant example. You don't get to BE the Dean of Harvard Law School without being an abject, albeit seemingly independent, corporate whore--of ANY gender.

[ Parent ]
Simplicity (4.00 / 1)
Just because Kagan is a cipher doesn't mean Democrats can't use her nomination to shape the debate. Is Patrick Leahy a potted plant? (Well, yeah -- he kind of is.) Democratic Senators need to get as brilliantly simple-minded as Republicans are:

Sen. John Thune (R-South Dakota), told the crowd that there are two powerful visions for the country.

"One consists of more government and less freedom, and one consists of less government and more freedom," he said. "And right now, unfortunately, the prevailing vision in Washington D.C. is that of government.  More and more government."

"Less government, more freedom". That's all that Republicans ever say, and it usually works. Can't the Democratic brain trust come up with something similar?


Particularly... (4.00 / 1)
"Less government, more freedom". That's all that Republicans ever say, and it usually works. Can't the Democratic brain trust come up with something similar?

with all that freedom running rampant in Arizona & the Gulf of Mexico.  You'd think that some sort of pithy come-back line would not be beyond the power of their vastly overpaid collective talents.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


[ Parent ]
this is a center (0.00 / 0)
right nation and always will be, obama is just another in a long line of supposed left of center hopes that seem promising only because of the alternative, as long as americas gold ring is the bottom line and not the health of the nation and society as a whole we are doomed to a path of conservative destruction of civil as well as environmental rights in the guise of progress.

I disagree (4.00 / 3)
I think the US citizenry believes (as a matter of unsubstantiated faith) that it is is a center-right nation, but that in actuality it is a social-democratic Left nation, desiring reliable work, health care, and pensions.


[ Parent ]
I believe that the Village (4.00 / 4)
believes (as a matter of unsubstantiated faith) that it is is a center-right nation.  I'm not sure the citizenry agrees with such foolishness.

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.

[ Parent ]
excellent, excellent diary Paul (0.00 / 0)
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.

who? rehnquist? try to think before you speak larry


If I remember correctly, Rehnquist (4.00 / 1)
was more supportive of campaign finance regulation than the present Court conservatives. What is foolish is the idea the claim that any politician would not have joined the majority. That is rank nonsense.  

Rehnquist's was an older style conservative, which is why he was different from Alito or Scalia. Ideology matters. That is what Lessig does not not want us to think about.

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.


[ Parent ]
re: rehnquist (0.00 / 0)
If I remember correctly, Rehnquist was more supportive of campaign finance regulation than the present Court conservatives. What is foolish is the idea the claim that any politician would not have joined the majority. That is rank nonsense.  

yes, thank you

Rehnquist's was an older style conservative, which is why he was different from Alito or Scalia. Ideology matters. That is what Lessig does not not want us to think about.

well said


[ Parent ]
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