Why progressives aren't cheering for Solicitor General Elena Kagan as President Obama's next nominee for the Supreme Court is an enigma, wrapped in a mystery. She's got just the personality, intelligence, and experience to shape the Court for decades, at a time when the legislative agenda of the president is going to face the most hostile justices since FDR's court-packing days. Indeed, Kagan has the potential to become another Earl Warren in her ability to unite the Court in seminal decisions on divisive social issues.
Yet influential blogger Glenn Greenwald -- who courageously rallied lawyers opposing torture -- has made preventing the nomination of Kagan his personal mission. He bases his attack on what he believes Kagan should have done rather than what she actually has done. The core of his complaint is that Kagan did not speak out louder against the Bush (and now Obama) policies on waging war against terrorists, rather than coddling conservatives on the faculty at Harvard Law School, where Kagan was dean from 2003 to 2009. She now serves as the first female solicitor general of the United States, a traditional stepping stone for Supreme Court nominees.
But it's precisely her experience at Harvard that most qualifies her for the current Supreme Court vacancy. Surely a woman who can tame the fierce passions of warring conservative and liberal factions at Harvard Law can help mold a cohesive majority at the Supreme Court -- something even Justice John Paul Stevens was rarely able to do. Part of this, as Stevens noted, is because the Court has veered rightward, but it is also because the justices as a whole have not remembered their own institutional interest in restrained decisions. At Harvard, Kagan reminded the combatants that they were ultimately taking the school down with them. She built a reputation as an honest broker who identified common interests and advanced the ball.
Like Harvard, the Supreme Court has been damaged as an institution by perpetually dissolving into warring camps. A string of 5-4 decisions on either side of an issue merely prolongs the dispute and creates more work for lawyers and political fundraisers. How can Americans have any hope that the Constitution actually stands for something if its interpretation constantly varies with the election results?
This is not the president's first appointment, nor likely his last. But it is the appointment that could most influence the success of his health care initiative, which is about to go whizz-bang from the states to the Supreme Court. It's exactly for this kind of case that some conservatives on the Court have been sharpening their teeth, for decades. They want to reverse constitutional law a century and return to an era when state and federal legislation protecting health and workers rights was uniformly struck down as unconstitutional. As reported by Jeffrey Rosen in a 2005 article for the New York Times magazine, there is a "Constitution in exile" movement that aims to dismantle the regulatory state and return to the Social Darwinism embodied in the Court's 1905 decision, Lochner v. New York, which struck down maximum working hours for bakers.
It is precisely at such a constitutional turning point that someone with the social intelligence (read: political smarts) of an Elena Kagan can make a huge difference. The best example of this, ironically, is Earl Warren. A conservative governor nominated by a conservative president, Chief Justice Warren worked the justices like a seasoned pol to unify the Court in unanimous or near-unanimous decisions on some of its most controversial cases: desegregation, court-appointed counsel for accused felons, and school prayer. Contrary to its reputation, the Warren Court was not so much liberal as national: it wanted the Bill of Rights to apply equally to all Americans in all states.
As for critics of Kagan's nomination like Greenwald, who find her too cozy with national security absolutists, they should remember that Earl Warren himself oversaw the internment of Japanese Americans from California during World War II. Some constitutional scholars believe it was precisely because Warren had participated in such executive actions during wartime that he became even more devoted to protecting the rights of minorities. Perhaps Elena Kagan's experience crafting the Obama administration's wartime response to terrorists will help her draw a clearer line in protecting the constitutional rights of individual citizens against a natural security leviathan.
The truth is, we don't know what any justice will become once she joins the Court. But what the Court, and the nation, needs right now is a justice who can find common ground where it is possible. As Justice Stevens himself told the New York Times:
"What really for me marks a conservative judge is one who doesn't decide more than he has to in order to do his own job. Our job is to decide cases and resolve controversies. It's not to write broad rules that may answer society's questions at large."
Follow Linda R. Monk, J.D. on Twitter: www.twitter.com/LindaRMonkJD
Does something seem wrong with that list?
The more I hear about Elena Kagan, the more I am reminded of the of General Casey in Mars Attacks "But didn't I always tell you honey, if I just stayed in place and never spoke up, good things are bound to happen."
1950s Grade B movie -- any adult would be appreciated.
But as the (given them a finger and they take the whole hand) rubberband of our country continues to be pulled towards El Duce people must be careful not to sacrifice the entire quality of our lives baby sittting juvenile delinquents.
That said when being held hostage helps to bring out the better angels of the terrorists.
Kudos.
Kagan just lost an 8 to 1 case put forward by Kagan - that even 4 liberals on the court were horrified by. Next time you write a pump article - do your homework. Kagan is a disaster for this Country - whether you lean left or right.
The internment of Japanese during WWII was one of the most contemptible episodes 20th century US history. Using this as a justification to support a person for the Supreme Court is scary.
If your defense of Ms. Kagan is that other Supreme Court nominees have approved indefinite imprisonment without trial based on ethnic background and that maybe she won't, I find the argument less than persuasive.
Should anyone want to find out what a disaster Kogan is, just read Greenwalds articles on www.salon.com
Kagan is an absolute disaster. Even the liberals in the Supreme Court gave her a deserved dressing down.
I think John Odum sums it up well here:
http://www.huffingtonpost.com/john-odum/elena-kagan-and-the-west_b_540526.html
But I think it's a bit patronizing to say that people who struggle economically aren't interested in social liberal issues. Free speech, equal pay, and civil rights are enormously important to people at the bottom of the wage scale, too. Remember folks like Ernest Debs, Clarence Earl Gideon, and Fannie Lou Hamer. They were poor, imprisoned, and beaten, and still took a stand for liberty.
Long story short: In my opinion, Kagan is a liberal, not a progressive, and so progressives are opposed to her.
I would point out that your cartoonish definition of a liberal in another post is completely inaccurate. Americans sometimes get caught up in terminology. I once had a professor from Peru say in class that "Many in the Third World are opposed to Reagan's liberal policies" which produced much head scratching. Someone finally said "Reagan isn't a liberal, he is a conservative. But "laissez-faire" economics IS a liberal policy, originating with John Locke and Adam Smith, and that is the way the term liberal is used everywhere but in the US. Conservatives tend to favor using the state to advance the economic interests of that country ("mercantilism"), while liberals from Smith on believe that the state distorts outcomes by choosing winners.
earl warren was appointed to the SCOTUS in an era of ascendant liberalism and the civil rights movement.. 20+ years after he supervised the internment programme...today..however..the radical right is on the ascendant..along with its policy of disappearing its political opponents.. of which kagan has been an outspoken exponent..to the point of being on bill kristols' side...the boumediene case would surely have swung the other way had kagan been on the SCOTUS in 2008.. and we would now be living in a hard-core police state as a result...
furthermore..im inclined to believe that o'bumble chose kagan because of craven political expediency more than anything else ..having already been defined by the far right..o'bumble is in no mood for the barrage of liberal-baiting from repugs that a substantive replacement for stevens would elicit...
To say that Kagan would not have upheld habeas corpus at Gitmo is baseless. She has made one statement, on one issue, and that is battlefield law. Habeas corpus only applies where the US courts have jurisdiction; it does not follow military troops wherever they go (i.e., into the battlefield).
how kagan would have voted in boumediene is necessarily pure speculation.. your implication that she would not have voted differently in boumediene has no more basis in fact than my opinion that she would have...
kagans' statement on battlefield law was so strongly in line with bu$hco (ie the whole world is the battlefield..upon which the govt can seize anyone it so desires as an "unlawful enemy combatant").. that i cannot help but think that kagan would have swung the other way in that case...boumediene and other such cases were basically about what happens when the battlefield overlaps the reach of US courts...and from where im sitting..kagan was hands down on the "battlefield" side of the argument...
Here is the thing - so she brought a law school faculty together: who cares? And how did she do it - by hiring more conservatives. So - the normal reaction by Kagan to partisan adversity is the same as Obama's ... adopt more conservative policies and hope they like you better.
Kagan, when Wood and Koh are out there is a pretty hard choice to stomach. In her solicitor general confirmation she claimed the presidential authority to detain indefinitely without charges.
First you ignore Greenwald's contention that we have little record of Kagan's opinions. The last time we had a stealth candidate (Souter) it turned out to be a disaster for those who nominated him.
Secondly Greenwald says correctly that Kagan's silence (while others spoke out) meant that she did not believe as strongly against those policies as others did.
And lastly you ignore Greenwald's contention - Beyond the disturbing risks posed by Kagan's strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. You ignore the red flags, then act coy about why progressives are unhappy about Kagan, and then to top it off add some mumbo jumbo about "national security absolutists". Ridiculous.
We progressives don't want someone who can bring the Supreme Court and Harvard together. We want someone who is progressive, articulate and has a well demonstrated track record as an intelligent and persuasive progressive. Kagan is not.
Wasn't Kagan the one who stonewalled the Senate Judiciary Committee despite saying earlier that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."
If she is nominated for the Court expect her for the second time to run as fast away as possible from her own words.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/05/AR2009030503226.html
Largely overlooked, though, is an issue that is ultimately more far-reaching: whether Kagan would be an effective liberal on the court -- that is, whether she has the skills to win over Anthony Kennedy, who casts the decisive vote in nearly all of the court’s most closely divided cases, and whether she could match wits with Antonin Scalia and John Roberts, the court’s conservative fire-breathers.
Based on a review of the transcripts of Kagan’s appearances before the court as President Obama's solicitor general, there is little reason to believe that she possesses particular deftness on either front. Even more surprisingly, Kagan has not infrequently raised the ire of the court’s more liberal members, her supposed ideological allies.
http://www.salon.com/news/feature/2010/04/15/kagan_as_solictor_general/index.html
"Kagan has not infrequently raised the ire of the court’s more liberal members, her supposed ideological allies. "?
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/24/AR2005072401201.html
And you've managed to come with two whole justices who were once "conservative" (as defined in a very different era) and became more liberal.
That's not much of a basis for your speculation that Kagan might suddenly decide to stop supporting horrifyingly unconstitutional ideals.
I suspect, given her dubious decisions, that she'll be another Barack Obama: Elected to office on promises of comity and reasonableness, of hewing to a center course, but really supporting and advancing right-wing ideology on many issues of desperate constitutional importance. Just like Roberts and Alito, now that I think about it, for whom many Dems voted.
Glenn Greenwald is right, and there are other candidates who are better qualified and not as compromised. Why risk losing more ground on the SC to someone so questionable?
Doesn't Greenwald point out that Kagan enthusiasically supported Bushco's "unitary executive" (i.e., dictatorial) practices. He also points out that she had very little opinion about the legal atrocities committed during the Bush 2 era, unlike many of her peers and that she flip-flopped on her banning of military recruiters on Harvard's campus in a hot second. Greenwald's opinion is deeper, stronger, smarter and far more sensible. He's right--there are much stronger, much more trustworthy candidates.
Think about what "battlefield law" means and why it exists. This is a system of law meant to deal with soldiers or areas where there is a battlefield. There are multiple reasons for why people can be held for the duration of hostilities in such settings, as they may pose a risk of returning to the front, or the level of fighting in the area has so crippled the common infrastructure that there is simply no way to have a regular functioning legal system. The Geneva Conventions cover this topic fairly well.
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I would just strongly prefer some actual balance on the court and this is one of the few opportunities to provide it. That means not a Catholic, not a Jew, not a New Yorker or a Bostonian, not a Harvard or Yale grad.
I'd prefer someone from middle America or the West, like the Montana judge for instance.
But it is primarily, I think, cultural.
I believe you do not have actual differing thought patterns unless you have actually different backgrounds and life experiences.
So I'd rather not have them all be Catholic, or all be from the East Coast, or all be white, or all be male, or all be Democrats, etc.
I guess I'm looking for more diversity on the court than just color or gender, though I thought that was/is important.
I'd actually prefer a bunch of brilliant apolitical centrists but that isn't gonna happen.
Thanks for caring.