A Tale of Two Nominees
Posted on May 10th, 2010 by Daniel Larison
It is telling that Republicans and conservatives seem uninterested in mounting any strong resistance to Elena Kagan’s nomination to the Supreme Court. A year ago, many on the right were furiously attacking the relatively unobjectionable Sotomayor, but now that Obama has nominated Kagan, who is apparently far worse on civil liberties and executive power than the justice she will be replacing (or Sotomayor for that matter), there is a strange resignation to the inevitable. To hear their leaders and activists tell it, the GOP is rapidly gaining political strength, and they are obviously in a stronger position today than they were a year ago, but their response has so far been quite tepid.
Perhaps they are all too tired out from combating Sotomayor’s non-existent racism that they don’t have the energy to resist a nominee who appears to be a willing enabler of the worst excesses of the national security state. In reality, we all know that most Republicans have no interest in checking those excesses, and many of them have become so attached to defending such excesses that it has become part of their political iden y. To the extent that most Republicans are content with or not overly concerned about Kagan, because she seems to line up with them on some of the issues on which the GOP has been appallingly bad, progressives, libertarians and small-government conservatives have reason to be worried.
Obviously, Kagan has enough votes to be confirmed regardless of what Republicans do, but it is a timely reminder how unimportant cons utional limits are to so many of the people who cannot cease talking about freedom here and abroad and how much many of them value a virtually unchecked executive. It appears that Obama has made a terrible choice, which is just one more in a long list of egregious decisions on civil liberties and the expansion/preservation of executive power. He should be excoriated for that, but unfortunately his opposition seems to have no interest in doing this. In an instance when Republicans’ reflexive, hysterical resistance to everything Obama says or does might actually serve the best interests of the Court and the country, they become indifferent or enthusiastic in response to one of his decisions. It would be a pleasant surprise if all the people who have been raging against the oppression of the health care bill could muster one-tenth of the intensity to challenge a nomination that could do significantly more permanent damage to cons utional liberty in the future than bad, unaffordable social legislation.
This confirmation process poses a real danger for progressive Democratic Senators, especially those up for re-election this year. When many of their core cons uencies are already disaffected and unenthusiastic about voting in the fall and Democratic turnout is down generally, they will probably be alienating even more of their base by confirming Kagan. I fully expect all but a handful of Democrats in the Senate to roll over for the sake of a swift confirmation, and I tend to doubt that even someone as good on these issues as Feingold will put up much resistance. It is hard to see what will motivate their supporters to turn out this year if it leads to nothing but “centrist” compromises in Congress and the nomination of national security “centrists” to the Supreme Court.
Especially after the last decade, we need no more “fans of presidential power” on the Court. It would be ideal if we could have some serious critics or even foes of presidential power there, but at the very least we need justices who do not cheer executive power. Even from what little we think we know about Kagan’s views on these issues so far, she should not be confirmed.
I have my doubts that the appointment of Kagan will piss off the Democratic base, but then again, if this is how Obama behaves at the zenith of his Congressional sway...the GOP may not even have to win back majorities in NOV to start winning even more significant concessions from Obama and the Dems.
Which is as it should be, but then again, Obama didn't exactly pitch himself as inside baseball guy.
On this pick, Obama basically nominated the person on the list who was least identifiably liberal.
A bit of wishful thinking that Democratic senators might be in trouble for supporting this nominee. It's Obama's candidate. No one is going to remember much else unless we find out she murdered someone.
I'm not sure there's very much to know about Elena Kagan. What do SC observers think about her brief turn as solicitor general?
What I know about Kagan is that she could upset the current dynamic on the Supreme Court more than any other nominee, regardless of political persuasion. It really doesn't matter how "liberal" your nominee is if he or she is consistently on the wrong end of 5-4 decisions.
Republicans are smart... they know if they dash Kagan to the rocks, Diane Wood is on tap.
Diane Wood, of course, is the true liberal pick... which is why centrism-loving Obama is going with Kagan.
You think it's smart to obstruct a previously confirmed, more "centrist" nominee? Also, you may be underestimating Kagan - politicians on both sides genuinely like and respect her. I think we'll get some initial gnashing of teeth, but she'll get through easily.
And again, it's not necessarily about Obama's centrism, it's about consensus-building, and moving Kennedy away from Roberts on key issues.
Obama's Pick of Kagan Recognizes the Difference Between 4 and 5
Lawrence Lessig, Professor of Law, Harvard Law School, Co-founder of Change Congress
Liberals are angry that the president has let them down -- again. They believe they are en led 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 Cons ution 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.
With Kagan being an apparent cypher, how did you come to the conclusion that she does not satisfy?
Obama will have an opportunity for a more liberal nominee when Ginsburg retires.
Why would a Democratic president feel the need to build consensus though? After all, it's not like Diane Wood is unaccomplished.
One would think they would pick the strongest "liberal" judge they could find, in order to proudly announce that, yes, I believe that liberal policies/mindsets are good policies. We all know that Republicans would do the same. Restocking the SCOTUS is one of the most powerful privileges that President has... to waste it on a pick that a) may be less liberal than the person being replaced and b) may not be as qualified as someone more liberal, is asinine.
Elena Kagan may turn out to be a great liberal judge. But she might not. There's not enough information to tell... just alot of "I've worked with her so she's ok" stuff going around. Whereas Diane Wood has a long body of work to look at, as well as being against creeping executive power (my personal favorite issue).
Why not appoint the more liberal nominee now, before seats are lost in the Senate (as they are most likely to be)?
Edit: I mean, what was the point of the Dems reaching a 60 seat majority if they don't plan on using it?
I think Lessig makes a compelling rebuttal to this notion.
The question is: do you want to change the way the Court rules or do you want to ensure that a particular viewpoint is advanced through the Court, whether or not it ultimately changes the way cases are decided?
A purely liberal ideologue might ensure that liberal rhetoric is incorporated into dissents that emanate from the Court, but is unlikely to be able to sway outcomes. A more centrist alternative might not offer the liberal analogue to Scalia, but might be able -- particularly after ensuing appointments -- to assume a more pivotal role on the Court and even (eventually) push Justice Kennedy out of the swing vote position on so many issues. That would be a dramatic change in the make-up of the Court and, very likely, result in a dramatic change in its jurisprudence on particular issues.
At this point, I'm not particularly sold on General Kagan as an appointee. But all other things being equal, the need to build consensus here strikes me as one that is focused entirely on the complexion of the Court and the ability of an appointee to assume a difference-making role in the way that hte Court decides cases. I think, frankly, that the more truly centrist the appointee, the more likely that result eventually becomes.
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