Liberals are angry that the president has let them down -- again. They believe they are entitled to a 21st Century Brennan, or Warren, or Justice Thurgood Marshall. They believe their work electing this man of "hope" justifies a new justice who would give the progressives hope. And they've been whipped up into believing that his nominee to the Supreme Court, Elena Kagan, is not that 21st Century liberal icon.
I find myself torn by this debate. I have not hidden my own disappointment about the limits in this presidency. Obama promised to "change the way Washington works," by which he meant (as he explained again and again), change the power of special interests to block or divert reform. Yet the last year has shown nothing except reform blocked or diverted by special interests, and the president has yet to even acknowledge that this is a problem that he intends to solve. He has executed the presidency Hillary Clinton promised -- maybe better, maybe worse, but no doubt different from the change he said we could believe in.
But neither do I share the fear of progressives about the judgment or values of Elena Kagan. I've known her longer and better than those who question her. I think the suggestion that she's a Bush-Cheney monster is just disqualifying hyperbole.
Yet of course, my attestations are not evidence, and as I've said before, I don't believe they should suffice to eliminate anyone's questions. But I do think these questions are obscuring a more fundamental point about this nomination which I do believe this president was absolutely right to recognize.
Barack Obama is appointing the 4th justice to the non-right-wing wing of the Supreme Court, not the 5th. If the appointment is successful, it will produce decisions with at least 5 votes that are closer to Obama's view of the Constitution than to Bush's.
So what kind of 4th Justice is likely to produce that 5th vote?
To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left. A bold, if sometimes bullying, extremist that marks off clearly the difference between the Left and the Right. Someone we could rally around. A new hero for an ideology too often too afraid to assert itself.
But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes. No doubt it would produce brilliant dissents. No doubt it would give the Keith Olbermann's of the world great copy. But it would fail to achieve the single thing we ought to be focusing on: How to build "coalitions," as Massachusetts Chief Justice Margaret Marshall put it to NPR yesterday, of five. Not compromises, not triangulations, but opinions that work hard to cobble from this diverse court a rule of principle that our side could be proud of.
The kind of justice who could do this well is not the justice who goes in with guns blazing. The lesson of Scalia's tenure is one of alienating his most likely friends, not forging strong alliances. Souter, Kennedy, and O'Connor all came to avoid following Scalia's lead by default. He set the extreme. They were not interested in extremes.
Instead, the kind of justice who could do this well is one who was practiced in "listening, before disagreeing," as the President put it yesterday. One who could disarm, through trust and respect, so as to get the other side to at least listen.
Whatever uncertainty there is in Kagan's past, there is no uncertainty about this quality in her. There is no doubt that she can do this well. That doesn't mean she's going to flip the other side on each case. It just means that she has the chance. And when one imagines the career that this 50 year old justice could have, it means she has the chance to profoundly change the direction of the actual decisions of this Court -- through the hard work of persuasion, not the self-righteous work of outraged dissents.
Thus the decision the president had to make was not just whether a fight for a clearly liberal justice could be won. It was also whether such a fight, even if won, would produce something more than romantic dissents. And as he rightly recognized, even if he could win the battle to confirm someone at the extreme, that would simply mean losing the war to win opinions on this Court.
That's what appointing the 4th Justice means. If the president get's a chance to appoint the 5th, then a different strategy makes sense. Let the 5th be the Scalia of the Left -- Pam Karlan, or you pick your liberal hero. But right now, what we need someone who can help move a divided Court, recognizing that we still stand in the minority, and our profound desire to feel good is no excuse for giving up a real chance for justice.
Follow Lawrence Lessig on Twitter: www.twitter.com/lessig
Randall L. Kennedy: The Media Jabs Are Unfair, Kagan Will Fight for Equality on the Court
There has been some grousing in the media about the paucity of racial minorities hired during Kagan's Deanship. I have known her for twenty-five years and must say that these criticisms are unfair.
Elena Kagan - Wikipedia, the free encyclopedia
USDOJ: Office of the Solicitor General
Obama picks Kagan for Supreme Court - Supreme Court- msnbc.com
Elena Kagan? - Politics - The Atlantic
Could Elena Kagan's Confirmation Signal End of Protestant Era on the Supreme ...
How Dare Elena Kagan Criticize the Three Fifths Compromise?
The case for, and against, Kagan
Chat with The Eye: Obama's federal hiring reforms; Elena Kagan's nomination
From Kennedy's opinion in Lawrence v. Texas which overturned Bowers v. Hardwick only 7 years after that decision was handed down:
"JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here. "
Not only was Steven's progressive view in Bowers persuasive enough to be the majority view in an overturning case only 7 years later (very rare) but it also wasn't some watered down, middle of the road, one-size-fits-nobody nonsense that I think much of the Democratic party has come to term reasonableness. No, Steven's view eventually won and it was a powerful, persuasive, yet unmitigatedly progressive view. The law is a slow process. Impassioned dissents have become law time and time again. Frankly, in many ways, a powerful progressive dissenter will have a greater long-term impact than an opinion-by-committee centrist with an unclear direction. In any event, the narrative that Lessig has set up above is a fantasy world-view and not to be taken seriously.
To the other point (from a reply to my comment which has not yet been posted), I am not advocating that we should take comfort in a strong dissent. What I am saying is that Stevens' dissent in Bowers provided cover and reasoning to allow Kennedy to more emphatically overturn Bowers in 2003. The court is unlikely to make shifts like that unless they have evidence and reasoning to suggest that the original majority had it wrong.
I am not gay, nor was I conscious of sexuality in 1986 but I do understand why that decision was so upsetting to you. I hardly think it is fair to call me misinformed because a flubbed the dates, for which I am sorry (I hadn't had my caffeine yet and was overly anxious to attack Lessig's nonsense).
Just say it Larry, you have nothing of substance to add to the debate. You just want to support your friend. Good for you. In the meantime, you are misleading people and that is just not cool.
The only people that support this woman (at the leadership level) are DLC corporatedem hacks who are more concerned with supporting "the team" than standing on solid progressive principles.
The last few Democratic presidents in my lifetime were not Progressive. Not even close. In their hearts, maybe, but not in their governing.
As you can see from my above post, I am more concerned with the normative. I know you are more concerned with practical or descriptive. My point will always be that you can never reach an ideal if you never articulate and fight for it. So, I will stick with pushing the envelope (in this case pushing for a Justice whose dissents may not change much now but do become the law in decades to come - when people wake up - as they did with the Lawrence decision).
If you are fine with a conservative Democratic party and an ultra-conservative Republican party, that is you prerogative. We have a serious disagreement if you think that that is how this two party system should be structured. It is the back and forth between both sides that keeps this country on the right track - not the constant tilting into conservative extremism.
her history of screaming tantrums at underlings speaks volumes.
good luck, one more Obama miss-step.
But I definitely don't buy the argument that she's going to be able to sway some of the other justices on the court over to the liberal side. Roberts, Alito, Thomas and Scalia will NEVER be convinced to change their opinion. As for Kennedy, it's unrealistic to think that this woman is going to have such a profound influence over him that it'll swing the court back to the left.
What worries me is that even if she is a liberal, all signs indicate that she's not as liberal as Stevens. Replacing both Souter and Stevens with more "centrist" justices will, by default, move the court to the right. The best that can be said for Obama's picks is that had a republican president made the nominations, the rightward swing would be far more drastic.
Obama deserves an Oscar for his stance against lobbyists and special interests during his campaign. Goldman Sacks is solidly in place in his administration (including Kagan) as pointed out in the following websites:
http://seminal.firedoglake.com/diary/43559
http://seminal.firedoglake.com/diary/46267
Now I really understand why Congress voted to limit Presidential terms after Roosevelt. The Congress (both House and Senate) do nothing, have name recognition, and stay in office year after year because there are no limits on them. You may try to be a good citizen and research the candidates; but unless you're in business or politics with them, you really have no clue about who they are and why they want a powerful position.
Did anybody ever wonder why the Constitution specifically sets 2, 4, and 6 years for the various components of our governments? Did anybody ever consider that since they were very specific about term limits the Fathers may have had an idea that making a career in government would not be a good thing for either the politicians or the country?
Bob Bennett should have gone home to work and live many years ago. So should Arlen Specter. John Boehner. Nancy Pelosi. My god, poor old Robert Byrd whose final days in the Senate have shown that his concern for the country is outweighed by his concern for holding the position. I even pitied Strom Thurmond who was literally drooling and incompetent at 101 and still held his seat in the Senate.
How about looking for a fine jurist for the next thirty years. What a weak reason for nominating your "friend."
Nominating a "friend" (ie. someone you know well) may be one of the best ways to get someone whose judgment you can rely on for 30 years.
I've juat about given up on thinking either the left or the right is ever going to quit fighting and start fiixing what is wrong with the country.
In the first place, the SCOTUS is not supposed to be a partisan battle ground. As a lawyer I'm just appalled that both sides want someone who will give them what they want in their own personal laundry list of ideologies.
Kagan obviously is brilliant and that's what matters on the SCOTUS. It is not Congress and the 3d Branch is not supposed to be about right and left. The Rule of Law is not partisan. It destroys the integrity of the SCOTUS to make it all about pet issues and finding someone who will guarantee the results that someone wants due to their ideology.
Im so sick of ideologues trying to run things - that's how we got into this mess in the first place.
GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.
JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.
GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.
JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that.
Myra
So we give up trying, and give in to mindless ideology and partisan attacks? How much longer are we going to last as a country if we do that?
LOL. sounds like lame weasel words. How's that compromising with the Right working out for Mr. President? Of course, it may be a cynical way to get exactly what he wants, but it makes him appear a patsy.
Was it Sen Tom Harkin who said, "How come the Conservatives get a Conservative, and we get a question mark?"
In actual day-to-day work, people and arguments, especially highly intellectual ones, are much more complicated than that. There is no reason to believe that principled, strong, even occasionally strident ideologies don't come from people who also can build trust and influence each other. To set that up as opposites-only is absurd.
There's a whole bunch of dignified, sensible, high-flying words in this piece, all intended to rationalize NOT putting on the Court someone who stands firmly behind the principles and values of the millions who are the reason Barack Obama was elected.
To that, I say, ppppphhhhht. (And every day, it seems less likely I will be voting for a major party in 2010 or 2012. I see what it gets me.)
If they hear a compelling legal argument, even if it goes against their ideology, I get the sense some of these folks will listen to that. I also have hard evidence some of them will not; just read some of the scathing dissents.
But all of that has been anecdotal, articles talking about the court. No one of us knows really how these folks operate day-to-day on cases.
I just don't believe that these very often terrifically ideologically driven people are somehow going to make decisions that, as Lessig says, will uphold principles the left believes in because some quasi-moderate is nice to them. I think that's nonsense.
I want someone like Stephen Breyer -- who I have seen a couple of times do public debates with Scalia, and despite their stark differences, they seemed to listen to each other, even if they outright dismissed some of each other's more partisan claims -- who can effectively and forcefully explain the legal rationales for a progressive understanding of the Constitution and the legal code.