It looks like Elena Kagan for SCOTUS – could shift court to the right
Image by Getty Images via Daylife
White House ‘insiders’ are reporting that an announcement on Obama’s choice for the Supreme Court will likely come on Monday and that Elena Kagan, current Solicitor General and past Dean of the Harvard Law School, will get the nod.
This may not be very good news for the nation’s progressives.
For a number of weeks now, Salon’s Glenn Greenwald has been making the case against Elena Kagan as the president’s nominee.
The heart of Greenwald’s argument revolves around the fact that Kagan stands as a very large question mark given her paucity of writing or comment on the big, legal issues of the day. And as she has never served a day on the bench, where she would have created a record of opinions, we are left with little knowledge as to how and what Kagan thinks and what she is likely to do on the Court.
What we do know is not particularly encouraging.
In 2001, while at Harvard Law, Dean Kagan authored a well-known law review article, entitled “Presidential Administration”, 114 Harv. L. Rev. 2245 (2001), revealing that she is a big fan of the Executive Branch. In the piece, Kagan defended and argued for the expansion of the powers of the presidency. Her beliefs, in this regard, not only lined her up with the more conservative elements on the Supreme Court but additionally gave great comfort to the Bush/Cheney legal loyalists who supported the unprecedented executive branch power grab that occurred during the eight years of the Bush Administration.
There’s more.
During Kagan’s Solicitor General confirmation hearings, she made very clear her belief that -
…”war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Via Salon
Again, this would tend to place her with the more conservative members of Congress who are anxious to curtail certain Constitutional rights in the name of fighting the war on terror.
Then there is Kagan’s dismal diversity record during her reign at Harvard Law, a time when Kagan increased the faculty by almost 50% yet hired remarkably few minority or female professors. While 32 of her hires were tenured, or tenure-track academics, only one was a minority while only seven were women.
Indeed, so questionable is the little we know of Kagan’s record, from a progressive’s point of view, that uber-conservative Bill Kristol actually endorsed her appointment in an April 11, 2010 appearance on “Fox News Sunday.”
So, why would Obama make this woman his choice?
For starters, it is clear that Kagan would have a considerably easier time making it through what would likely be a contentious Senate approval process were Obama to chose someone more aligned with progressive thought – someone like Judge Diane Wood. There is also no arguing that Kagan is known to have an extraordinary legal mind – one Obama believes will provide a balance to the other ‘big’ legal brain on the Court, Chief Justice Roberts.
Then there is the fact that she is relatively young – only 50 years old – which means Kagan is likely to hold her spot on the court for a long time, coupled with the fact that she has never been a judge which, according to the president, would bring some ‘diversity’ to the highest court of the land.
Of course, the fact that Kagan has revealed her strong bias towards presidential power would no doubt play as a positive to the president that is appointing her, one who expects to be around for a number of years to come.
While there is really no telling where Kagan will fall on key legal issues to come, what we know about her certainly indicates that she is far more likely than the Justice she is replacing to push the court to the right. When you consider that this appointment is to the very seat previously held by progressive stalwarts like Stevens, Justice William Douglas and Justice Brandeis, this simply does not feel right. This is the traditionally progressive seat on the Supreme Court and it seems far from clear that Elena Kagan will stand for the principles of legal interpretation brought by those who have filled this seat since 1916.
Is this really the legacy President Obama wants to leave behind?
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He told you that you would get change, but he never did say what kind. Other than health care reform (that is his legacy) and Gates calling for less military spending, there is no change.
The bench already has Scalia and Thomas; Bush added Roberts and Alito…and Obama’s response is Sotomayor (a right-leaning moderate) and Kagan?
Amazing. We could be looking at one of the most conservative* benches in history.
* I don’t mean judicially conservative, these justices are as activist as any who have ever served.
http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?_r=1
Sotomayer as a right-leaning moderate? She is only right-leaning if you are a left-leaning radical that ignores reality.
From Wikipedia: Sotomayor’s circuit court rulings have led to her being considered a political centrist by the ABA Journal and other sources and organizations. Several lawyers, legal experts, and news organizations identify her as someone who has liberal inclinations.
AND…
http://abcnews.go.com/Politics/wireStory?id=7681616
http://online.wsj.com/article/SB124338260937756559.html?mod=googlenews_wsj
http://www.time.com/time/politics/article/0,8599,1901094,00.html?iid=tsmodule
In response to another comment. See in context »HI Rick,
Before I forget, I can’t get your “well-known law review article” link to work. I think that maybe the link is connected with a search or cookies on your PC vs. an actual link. Or, maybe it’s just my PC.
To balance your article out a little, you could mention that the LGBT community is moderately encouraged by her DADT stance that was evident when she was Dean of Harvard. She is quoted as saying:
“The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country.”
And, in regards to diversity, I think that it says something about her (something positive) in that she didn’t intentionally put minorities into tenured positions. As a left-leaning female we might EXPECT that type of bias. But, she refrained from that type of discrimination. I think that a progressive that can refrain from automatically grabbing minorities for certain spots deserves credit. Yes, I value diversity. But, diversity shouldn’t be an excuse for discrimination. Racial profiling, quotas, affirmative action… all based on race vs. qualifications.
I agree that there isn’t much of a record with her. That does, of course, make liberals and conservatives nervous. She could end up being a moderate. And, what is wrong with that? Maybe there is something of VALUE when someone is willing to be more of an independent vs. going with the crowd. Do we truly think that every progressive thought in existence is inerrant? I tend to prefer balance and moderation vs. extremes. But, in the end, I ultimately want someone who is a legal scholar with constitutional law. Easier said that done, however. Everyone can claim to be a constitutional scholar and yet look at the constitution differently.
It’s sad that this nomination process is so polarizing and political now. It wasn’t long ago that even ultra-liberals like Ginsberg received a 96 to 3 confirmation vote. Kennedy was 97 to 0 and Scalia was 98 to 0. O’Connor was 99 to 0. I don’t think near unanimity votes like that are even possible now.
Moderates are an excellent idea if everyone on the court is a moderate. However, this is not the case, which is why it is important to find balance. I don’t think that Sotomayor is a ‘right leaning’ judge. But when we have Justices like Roberts, Scalia and Alioto who are not moderates or centrists, then the only way balance can be accomplished is to have voices for the other side of legal thinking.
In response to another comment. See in context »The interesting thing about supreme court justices is that they often don’t turn out to be the way that “common wisdom” would suggest. Justice Souter was nominated by Bush 41, with everyone thinking he would be conservative. He started off that way, and then SURPRISE!
The one thing I look for in a supreme court justice is pragmatism. Whether liberal or conservative, I want justices who realize that the law is not an end unto itself. That’s not quite the same thing as those who prefer states rights, or those who have one opinion or another on abortion. I want pragmatic justices.
In response to another comment. See in context »“This may not be very good news for the nation’s progressives.”
Neither was Obama’s election, really. He is Clinton II, and Bill was no friend of progressives.
“So, why would Obama make this woman his choice?”
Because, like everything else he’s done, it’s the easy way out. Obama has no real vision, and no balls to really stand for something. He doesn’t have any fight in him.
“Is this really the legacy President Obama wants to leave behind?”
Of course it is! And why shouldn’t it be? When Obama leaves office, Democrats, and far too many progressives will regard him very highly because he is a Democrat. He’ll go down in history for being the first african-american president, and for being “better than Bush!” And while the former is a historical achievement, the latter could be accomplished by a poorly trained slug.
Good points about Obama. He is disappointing many liberals and progressives. His election victory, in my opinion, had more to do with his “inspiring” speaking skills, his minority status AND that he was proclaiming to be the exact opposite as Bush. It certainly had nothing to do with a track record of accomplishing anything great.
His Nobel Prize award was much like his getting elected as President. He was given something because of promises and “hope” vs. actually accomplishing something great and being recognized for it.
In response to another comment. See in context »When you stop and think that all sorts of trouble makers in the media and the big money lecture circuits (50-$100,000 to rile up a crowd) are constantly accusing him of being socialist/commie, a pick like this makes a lot of sense.
The court needs its own progressive Scalia for sure. I don’t understand Obama sometimes.
Erik – that pretty much sums up my feelings. Today’s ‘adventures’ – announcing an effort to get Congress to legislate further restrictions on Miranda- are equally perplexing.
In response to another comment. See in context »[...] is not known as a liberal when it comes to such things as War and the Executive Branch: In 2001, while at Harvard Law, Dean [...]
[...] judicial experience, to the irrelevant such as rumors that she’s a lesbian. Critics also have expressed concern that she’s too conservative-leaning for an Obama appointee. But an issue about Kagan that [...]
[...] such as rumors that she’s a lesbian. Critics also have expressed concern that she’s too conservative-leaning for an Obama appointee. [...]
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Definitions seem to be so malleable. She is a right leaning individual…because she is a statist! Amazing.
Your comment is unreasonable and, frankly, wrong.
In response to another comment. See in context »Maybe someone out there said that Kagan is a ‘right leaning individual’ but I certainly never suggested that. What I did suggest is that she could move the court to the right – not that she is right leaning. There is a considerable difference.
Every time I see the currently fashionable epihet “statist”, I have to scratch my head, and wonder who’s using it. If capital-L Libertarians are using it, fine- I think that the Paulite faith in the wisdom and decency of “the Market” is a bit naive, but everyone’s entitled to their own opinion. But- if you’re a Republican Conservative (or Tea Partier, same thing), then, man, are you ever a hypocrite. I didn’t hear one peep from Republicans when Junior Bush, or Ronald Reagan metastisized the size of the Federal government. Not one peep from “liberty-loving”, “fiscally conservative” conservatives over the Patriot Act, or the Bush Administration’s bugetary tricks to kick the cost of the (strategically stupid) Iraq war down the road. From 2001-2007, Republicans WERE the State. Now that Republican incompetence and corruption have cost them control of the State, a lot of them have become “anti-Statists” overnight.
Either way, are you sure that it’s only definitions that are malleable these days? Define “Statism”- and I’ll show you some REAL malleability, makes Silly Putty seem like a rock.
In response to another comment. See in context »She’s not right-leaning? Really? The woman who made space for “conservative views,” at that liberal bastion known as Harvard Law? The woman who so impressed the GOP during her sol-gen confirm hearings? Perhaps we’re supposed to couch any concerns about her terror warrior world-view and reproductive rights record because “we’ll finally have a gay justice?” (is she even gay?)
And in case you surrender monkeys haven’t noticed, Miranda warnings in any context are a greater threat to the Homeland than the secret Iranian missile bunkers.