As expected, President Obama's nomination of Elena Kagan to the Supreme Court to replace the retiring John Paul Stevens has produced the usual political Kabuki theater from Republicans. The predictable litany of "concerns" about her qualifications, stances on legal issues, and judicial temperament are red meat for their constituents and fodder for the talking heads on the far right as they prepare to do battle in the midterm elections in November.
What has been more surprising, though, has been the reactions of many Democrats toward Kagan's nomination. Though there has been universal praise for her intelligence and demeanor, she has been criticized for not being liberal enough, particularly in comparison to the firebrand style of liberalism for which Stevens has been known. Dems on the far left are angry and frustrated that President Obama didn't nominate a lefty doppelganger of the hard right justice Antonin Scalia -- for example, Diane Wood.
This exasperation seems justified when you look at the justices that have been nominated by recent Republican and Democratic presidents. While Republican presidents have no problem selecting very conservative jurists (think Roberts and Alito), Democratic presidents tend toward what might be called timid choices who are liberal (think Sotomayor and Kagan), but are decidedly less controversial.
In principle, I too was disappointed with the "safe" choice of Kagan made by Obama. Given the pugnacious style of Scalia, I would love to have someone on the left side of the court who is willing to go toe to toe with him. At the same time, as usual, I see tremendous calculation in Obama's decision that I have to admit makes a lot of sense to me at this moment in time.
I want to emphasize "at this moment in time," because the nomination of a Supreme Court justice doesn't occur in a vacuum. Rather, it happens in the broader political and social context of this moment in which a variety of forces may, looking at the bigger picture, justify Obama's decision to nominate Kagan.
This context includes the approaching midterm elections in which the Dems are already expected to lose seats. A conservative movement that is showing signs of reinvigoration (see Tea Party). Congressional Republicans smarting from the humiliating passage of health care reform legislation and the impending passage of significant financial reform legislation. A Republican party that is craving a fight about something - anything! - that they can use to fire up their base as the November elections near.
One of Obama's gifts is his understanding of how his decisions become targets at which his detractors can sling their arrows. His ability to deny the Right targets enables him to govern more effectively and puts his fellow Democrats in a better position to maintain control of Congress because the Dems can argue their case in a calmer and more reasoned environment. The calculation to avoid any political storms, such as a protracted and heated confirmation hearing will enable Obama and the Dems to focus on the real victories they have won in 2010 as well as on the improving economy (which will likely be the ultimate deciding factor in the upcoming elections).
I believe that this context is why Obama chose to nominate Kagan over Wood or other more liberal candidates. Kagan is, by almost unanimous estimation, eminently qualified, but, because she has never sat on the bench, she has no history of judgments that would provide fodder for the Republicans to put up a fight (if only for show) during the confirmation hearings. In fact, her record as an academic and the Solicitor General is remarkably lacking in anything controversial (aside from the short-lived decision to bar military recruiters from the Harvard campus). As the summer heats up, so will the political atmosphere as the fall elections approach. In choosing Kagan, Obama has preemptively prevented the thermostat from being turned up too high at a time when keeping the political arena cool is essential for the Dems as they prepare for the midterm elections.
Yes, it's frustrating for many Dems to see this opportunity to seat a truly liberal jurist with a more combative judicial temperament on the Supreme Court, especially in light of the rarity of such vacancies. At the same time, given the current moment in which we find ourselves, I can't but applaud President Obama for his expectedly deliberate and, dare I say, judicious, nomination of Elena Kagan to the Supreme Court.