A Concurrence In The Case Against Elena Kagan
Last week Glenn Greenwald penned a solid case delineating why current Solicitor General Elena Kagan, who is at the top of the purported Obama “short list”, would make a poor nominee to replace the retiring Justice John Paul Stevens on the Supreme Court. Despite the hard truth in Greenwald’s facts and arguments, he has been blistered by both the Obama Administration and their apologists and fanboys. The Administration has, as reported by Sam Stein, even enlisted a hit team of loyalist flaks and supporters to discredit Greenwald and his article.
The reason the White House finds itself in the position of fighting off its own base in the first place is because Greenwald is dead on the money with his analysis, criticism and conclusion that Kagan is a poor nominee; and especially considering it is Stevens’ critical seat she would be filling. Glenn’s facts and argument speak for themselves, but there is an additional area neither he, nor anyone else, has substantively touched on which militates against Kagan. Elena Kagan is so terminally inexperienced with the American court system as to be unqualified to serve on the Supreme Court.
I appeared in three different courthouses last Friday. Which is two more than Elena Kagan has appeared in as either an attorney or judge during her entire legal career. Her first appearance in the Supreme Court as Solicitor General, little more than six months ago, was the first time she had substantively appeared in any court. Ever. You can still count her total number of live court experiences (all appellate arguments) on one hand. The complete absence of experience and seasoning showed in several key areas in Kagan’s uneven oral argument presentations, and the claim Kagan is some kind of wonderful talent who necessarily would bring diverse Supreme Court justices together exposed as unsupported fawning fantasy.
The American trial court system is literally the backbone of our rule of law; they are where the public substantively interacts with the law and their law is meted out, as well as being where the foundation and record for appellate cases and controversies are made and perfected. How is it appropriate to be considering a woman for a position that will impact evidentiary, procedural and substantive trial processes – for every trial court in the country; federal, state and local – when she has never been in one? There are forty Justices in the long and glorious history of the Supreme Court who had no prior judicial experience; there are none I am aware of who had the nearly complete absence of any practical legal court experience as an attorney, much less as a judge, such as is the case with Elena Kagan.
These are complex situations and issues arising in uniquely dynamic confrontational adversary settings; they are not fully cognizable nor understandable from the cold isolation of a printed record. If you have never been in the halls, bowels and docks of trial courts, you just do not know. An understanding of the dynamics, biases, unwritten rules, grit and feel of trial level courts simply cannot be gained without at least some exposure to them. Elena Kagan has absolutely none, yet Barack Obama and the Kagan fan club blithely think she should be given a lifetime appointment to review and affect the daily literal life and death matters occurring there. She is not fit for the job, and it is reckless and deplorable the Obama White House does not realize it.
It is already such that the Supreme Court has only one member, Sonia Sotomayor, with any experience as a trial judge, but at least the other Justices have varying substantial histories and experience as attorneys and judges in a variety of trial and inferior appellate courts. Elena Kagan has squat. The cloistered imperious disconnect between the hallowed halls of the Supreme Court and the actual public judicial system would go from the already bad to far worse were Kagan confirmed to replace Stevens. An extremely troubling move being contemplated by a President who ran on the supposed mantle of being an experienced lawyer, Constitutional scholar and wise leader.
One of the heavyweights rolling out to buck up Kagan against Greenwald was Supreme Court appellate specialist Tom Goldstein of Akin Gump and SCOTUSBlog fame and fortune. Goldstein savaged Glenn by painting him, and other unnamed progressive Kagan critics, as “wingnuttery extremists” operating on the “ideological fringes”. Goldstein’s attack posturing is unfounded and scurrilous, all the while as he conveniently omits any disclosure of his own personal connection to Kagan, her former Harvard largesse and dependence on the acts and kindness of Supreme Court Justices.
Yes Mr. Goldstein, Greenwald and a lot of us others believe the executive branch is not above the law, that the Fourth Amendment and FISA laws actually have meaning and that the US government should not sanction and institutionalize torture. I guess these tenets are what sensible “centrists” like the oh so superior Goldstein consider indicative of the radical fringe left. Funny, at one time they were considered the kind of concepts the United States was founded and built upon.
Irrespective of Goldstein’s malevolent and false posturing, the theoretical policy distinctions he strains to argue are one thing; Kagan’s complete lack of foundational experience is quite another. If Goldstein is going to slough off this disqualifying fact, it will require greater fictional liberties than even his new self promoting television show.
But isn’t asking for a justice with actual courtroom experience an example of looking backward, not forward? Or something like that?
I hope that this administration gets smarter, fast, or it will be a one-term administration; the people it should get votes from will be voting against it for reasons having to do with a whole lot of broken promises and missed opportunities.
I totally agree. Moreover, I fear that Obama will definitely nominate Kagan and she will be an adherent to the Scalia, Roberts, Alito, and Thomas right wing opinions and we will be screwed for decades. That will happen before we have a chance to vote this administration out. Kagan is bad news, but that seems to be the way Obama is going in many important areas. Obama is a Chicago Blue Dog–also known as conservative. We’ve been had, big time.
WORD! It’s all SOP for malicious myth-makers.
Obama was a stalking horse of a different color for the corporatist Wall Street Democrats (as represented in the effing Hamilton Project at Brookings.)
From fflambeau’s Seminal diary of December 7, 2009: Obama’s “Smoking Gun”: His Hamilton Project Speech shows his links to Goldman, Entitlement Cuts (Part 1)
Simply update the proper nouns: eg, “challenging the corporatist orthodoxy;” “an ensuing attack on progressives;” “the nod to efforts to disembowel Congressional oversight,” the better to keep the people in the dark.
It’s getting to the Pravda point with our own gov’t. More and more, they seem to mean the opposite of what they say.
This. Must. Not. Happen.
left you a funny in your NTTAWT diary
Who is pushing so hard for her?
Harriet Meiers all over again? Why does this happen? It not a credit to any administration.
Is support for Kagan’s nomination what Bill Clinton was hinting at when he told Jake Tapper on This Week, that he thought Obama should look for a nominee among folks that had never been judges? He also effectively took himself and Hillary off the list, claiming they’re both too old and otherwise occupied. Said the nominee needed to be 10-15yrs younger (Kagan is 49). Also made a remark that he should perhaps look for a nominee that represented another group. Was that a veiled endorsement for Kagan’s nomination? Would Obama bring in the Big Dawg to help sell Kagan? Or do I have flies in my eyes again?
Kagan worked for Clinton. They probably know all about Kagan’s support for basically letting the President act like an unconstitional monarch.
“represented another group”
According to my local gay newspaper in Chicago, Free Press, she may be and has never denied being Gay. So the columnist concluded that she is gay. Or probably is. And that was enough for her to say she would be a great choice for the Court. Yah, go team!
For the record, I don’t know her sexual orientation and I don’t think it should matter but sheesh, if that’s the “other group” and that’s all it takes to get on the court, it’s a pretty said day.
When did “never denying being gay” become an admission of “being gay”? It makes no sense to me.
As to Kagan, something we once heard from someone who had a class with her as an instructor, rather than a dean, at HLS: “she taught Civ pro and had no clue about it, but she was a great used-car salesman.”
FWIW, many of the same “unqualified” arguments were made against Peter Verniero when Christie Whitman nominated him to the Jersey Supreme Court. He, too, had never taken a deposition, tried a case, argued an appeal. His main qualifications were that he had been a life-long Republican activist, had been Tom Kean’s campaign driver and flunky, (IIRC had been the governor’s lawyer- the Harriet Meiers job)) and was ideologically reliable. He had, though, parlayed that into being the Attorney General of New Jersey (where he tried to some degree to politicize it to hunt Dems), but he had gained some supervisory experience in that job and had some minimal clue about how the court system worked.
He quit after about 5 or 7 years on the bench, having issued a number of ideologicaly-tinged opinions (particularly dissents). His stated reason as I recall it was that he needed to make more money than a judge could, so as to put his kids through college. Thank heavens for crappy student financial aid, this once.
Thanks, bmaz.
So our brilliant, Constitutional Law Professor President is on the brink of nominating a Supreme Court Justice who is less experienced than Clarence Thomas was when he was nominated? Every day, Obama finds new ways to disappoint…
Thomas for five years actively practiced in courts as a Deputy AG and private lawyer in Missouri before working at the administrative level in the federal government and then as a judge. Thomas certainly did not have the greatest background, but his experience level in courts is light years ahead of Kagan.
Yeah, but Thomas is a dickhead.
You sure her middle name isn’t Incitatus?
Really, this is just a setup for more triangulation: gays, Jews, women and O-fans on the one side (in favor), Republicans going nuts (against), and sensible people of both parties throwing up their hands at, on the one hand, her abject lack of qualifications and, on the other, the rebuke to Obama and the admin that will obtain if she gets voted down. Recall that Cormyn was asked whether being gay would DQ a nominee and he said it would not necessarily, if the nominee were qualified. So, look for the ABA to come out and stamp Kagan “well qualified” or something similar. They need favor from the Admin, just like Goldstein needs to be in good graces of the justices for the well-being of his practice. Or maybe he’s hoping for a nice, cushy judgeship. Maybe alongside a similar firebrand, Brett Kavanaugh.
Frankly, Obama needs to be rebuked on this one. Given his abysmal performance on a host of issues to date, I don’t care whether he gets re-elected or not. The wounds his potential re-election suffers from are without exception self-inflicted and the result of actions and decisions he took after the Democratic base (us) warned him against because they contradicted his promises and were, in one sense or another, un-American, illogcal or counterproductive.
You may not care whether or not Obama gets re-elected or not, but I sure as hell do care – that he not be given another term.
But Roman Hruska would surely approve of Kagan.
Thanks for this post, bmaz.
The link in the post “uneven oral argument presentations” is to an American Constitution Society piece re: her argument on humanitarian aid as providing “material support” to terrorists. This is pretty damn instructive – Prof Cole was arguing against gov:
emph added
*sigh*
That’s Obama’s clique.
Yes. Exactly. I have been familiar with that little exchange since the day of the argument; it really stands out. The thing is, it was not an angle that was prepared or strictly part of the case being presented, it was one of those famous off the cuff probing questions the Justices are famous for. I am absolutely convinced this was Kagan responding, not anything that was prepared for. This is how Kagan really processes and thinks, and it is more than a little scary, not only for the fact that is her knee jerk response, but that she is not more adroit and lighter on her feet as an advocate on the stage to know when she is making an idiot of herself. It is damning on a lot of levels.
I picked it up bc with the Justices’ reactions bc it really does show on how many levels she’s a problem. Politics and ideology rather than law, overbreadth, lack of ability to see long term and big picture ramifications as she frames her arguments, Bushian intransigence when she’s dug a hole, etc. etc.
I fear the Kagan nomination will be another case of insiders vs. outsiders. She was not only dean of Obama’s alma mater, she seems to have a similar aptitude for omnidirectional placating as Obama. Combined with a lack of trial and appellate experience, of experience outside the smoke-filled rooms of Washington and the fiercer battles fought out in faculty lounges, that would make her a pawn to the right.
Kagan’s potential willingness, her need, to placate will end up sacrificing not just principles someone in her shoes should fight for. It will sacrifice the rights and interests of individuals in conflict with their governments, their employers and powerful corporations. Individuals confront more such conflict than we possibly ever have, what with jobless recoveries, incessant government and corporate outsourcing, foreign wars, domestic surveillance and the loss of privacy generally.
Mr. Obama owes his country a nominee who has less deference for governments and corporations, and more for the rule of law. He owes it a nominee who understands how crudely and threateningly the law is made, implemented and enforced. Ms. Sotomayor at least, knew the streets of Brooklyn, the troubles of trial courts and the limits of the advocacy process. Ms. Kagan knows how to hire the likes of Jack Goldsmith to placate political criticism. I know which background I’d rather give a lifetime appointment to the Supreme Court of the United States.
Here from SCOTUS Wiki is a better description of just how bad the performance by Kagan was:
It was truly a very sad display.
If only the oral argument was now, too, they could be asking her if, in addition to those memos being unlawful, the President could target for assassination American who wrote them.
Oddly enough, watching the Bourne Ultimatum last night brought Obama more so than Bush to mind. He’s moved Blackbriar from a fictional concept that would trigger criminal charges against the CIA into the mainstream of being a concept hugged and squeezed, with a little pinch too, by someone like Koh.
I said something like that on a thread a little while ago. It will be hard to come up with a sequel now, because what could they do that would shock the conscience anymore.
I guess their “Killing A Kitten Every Hour Until Bin Laden Turns Himself In” webcasts maybe?
Or not.
Very illuminating. Thanks, bmaz, for following up Greenwald’s excellent piece with one of your own, and joining him in the fight. Kagan appears to me to be a full-throated participant in the project of constructing a unitary executive. She is bad news.
Nothing Obama does at this point surprises me. He appears determined to rule from a right-centrist political position. Doing so, he’s dragged a significant component of the Democratic Party farther to the right, but he has also, perhaps, polarized things, and maybe those more left, more progressive will be less willing to play the game of partisan fetishism and engage the issues regarding what is really important for this country.
Regarding “partisan fetishism”, now else could we have a Democratic president and Congress with very little interest in addressing the massive unemployment problem in this country, content, it seems to let it slide into “structural” status? Sad, very sad, and ultimately will boomerang on the feckless Democrats who ignored it.
Thanks for your unrelenting work on the psychology of what ails us today. I bow in your virtual direction.
That’s what I’m saying. What do all these examples of Dems speaking populist, while acting global-corporatist, teach us about strategies informing real-time psy ops? How best to understand the “cognitive infiltration” tactics they evince?
After Mitchell-Jessen became too “radioactive,” has anyone taken their place?
As reported by Scott Horton in Harpers.org, the AP long ago (February, 2009) revealed that the Pentagon has a massive “influence ops” program aimed at us:
What’s your take on any such real-time psy ops involved in the Obama Administration’s jacking the nominee narrative, or any other? Where are the “influence operators” online, how do we detect them, how do we, as in judo, use that usurped power against itself?
Their job is to convince you that “you are free to do absolutely anything (torture, murder, rape, etc.)” (from “Virtual Morality“).
If you are going to worry, worry about how you perceive the relationship of power and powerless (just to start):
http://www.WeRoy.Org
What’s the state of your mind?
State of mind: kenotic, ever-flowing, not the least bit static.
I agree: the job of the influence operators is to get us whole-heartedly, yet utterly mindlessly, into the myth of American Exceptionalism.
I’d say something similar: it’s to convince us that we’re free to do exactly as we’re told, or go to hell forever and ever amen. Or go bankrupt for developing the symptoms of being alive. Or for buying the “house of your American dreams.” Or go to Gitmo, or Bagram, or DoD knows where. Same thing.
We’re sold on the myth that, if you play your cards right in rigged-casino capitalism, as Max Keiser puts it, you’ll win entry to The Good Life. If you’re not living the Good Life, you didn’t play your stacked-deck dealt cards right.
IMO, the fundamental strategy of this attempts to jack our shared narratives are all about convincing us organic humans to believe ourselves to be either a) from the Right: servants on the estates of our natural-born MOTU (political economy as plantation); or b) from the Left: cogs in the wheels of the mechanisms of the Great Cosmic Machine, mastered by the political exercise of unregulated kinetic power (political economy as mechanism, with power measured in dollars, oil reserves, or nuclear warheads). Be pragmatic, the conventional myths say. Use the levers of power to advance the interests of your gods/idols/financiers, just as god and or Newton’s Laws intended it.
IOW, opposing the state, or Obama’s nominee, gets you classified along with other official “evil-doers,” who deserve whatever hell TPTB can self-righteously make for you. The myths, among other things, are to convince the others that the devils made us do it.
The telecoms didn’t want to spy on us, the feds made them do it; the torturers had no mes rhea to inflict pain on “evil-doers,” the feds said they had to; the banksters didn’t want to steal all those billions, the Fed said it was in our national interest. And so on.
I’m saying, Obama and his surrogates, like every presidency before them, are preaching myths of American Exceptionalism, nowadays using advanced weapons of mass deception such as Cass Sunstein’s favorite: “cognitive infiltration;” as evinced in this and other jackings of our shared narratives.
There are plenty of data from plenty of jackings to get an idea of what to expect next. It’s about time we sum the results of these attacks and formulate effective countermeasures, as in judo, I repeat–let’s not define our civic life in terms of the mythos that is wailing on us: life as holy war, shall we? Rotating despotism masquerading as pragmatism, however benign it’s preached, is not my idea of progress.
Correction: “
mes rheamens rhea.” But it sure is a mess, anyway. /sBetter examples of “the devils made us do it” myth used by ObamaCo: If you oppose the Chosen One, you just might be an extremist evil-doer of some sort.
He didn’t want to exclude the single-payer advocates or the public option, the Repubs made him do it (the Baucus caucus ploy).
Obama doesn’t want to immunize the torturers, burrowed Bushies are making him honor those obligations.
He doesn’t want to hide Israel’s nukes, AIPAC’s making him do it.
He doesn’t want to wage war in Afghanistan, the terrorists are making him do it (that one’s good for converting all sorts of crimes into virtues, precisely the alchemical power of myths, to spin straw–or bullshit, in this case–into gold).
There is no doubt such psy-ops continue. However, I try not to get too paranoid about who is what, because there’s not much we can do about that. I believe that one sticks to the truth, keeps reporting the truth, joins with others who we recognize are willing to say and report the truth, and that’s how ultimately we will succeed (if we succeed).
Horton’s report concerned battlefield reporting, and so far, we are not domestically at such a drastic situation (although some domestically have been hassled or even arrested, such as Amy Goodman).
The only time I counsel people to be wary is regarding provocateurs. If you ever feel someone is pushing you into something you don’t like or want, don’t go there. Stick to your principles, to what you know is right and wrong, what is true, and that’s all I can offer. Of course, for journalists trying to make a living, there’s a lot of pressure to conform. But many are principled and brave people. These are difficult times. It could be worse. Educate yourself and others.
“right-centrist”
I think we do ourselves a huge disservice by referring to a political spectrum that starts to the right of Dennis Kucinich and moves to the fascists. If we started at a truly far left position (communism, say), then Obama, et al, would not be center anything. They are, and should be referred to as, right wing. Kucinich is leftist, but certainly not extreme, or socialist. In the real world, center left.
Glenn has one argument against Kagan that is (in the mathematical sense) sufficient to disregard her: She did not speak up against executive law breaking at all until everybody had gotten on the bandwaggon, and from then on her contribution appeared tepid to the point of non-existence. I do not care at all whether the “restraint” was personally or professionally motivated.
Nobody who did not see the housing bubble, or decided to take advantage of it, should retain, or be awarded, a job at the Fed, Treasury and in the financial corporations. Similarly, no legal professional that is not on the record as havinhg voally and early opposed the Bush/Obama abuses can possibly qualify.
But then, that is the problem, isn’t it? Nobody can oppose the original sins of the Bush executive without implicitly opposing their perpetuation by Obama, and nobody who does so will be nominated by Obama.
I completely agree with Glenn Greenwald on his criticism, but I have to wonder what he expects to happen? I remember how Scott Horton defended Muckasey’s nomination, only to find himself disappointed. It is the tautology of corruption: Anybody nominated by Obama has to be suspect, the very event of being nominated – and the act of accepting such nomination – constitutes an indelible taint, and we can expect that nomination will predict future performance.
There would be lots of problems, not just from the fireworks in the advice and consent process, but also from the recusal process, with the nomination of anyone who has taken a prominent position on these issues.
This will no doubt show my once-upon-a-time, now-and-then Republic streak, but I really think it would be a good idea to have someone on the court with a bit of military background. Stevens actually understood ramifications about war and Exec power with his background and what it means to take away restraint and constraints and replace fighting for the Constitution to fighting for the purpose of suspending it.
I guess I don’t care as much on the “liberal” vs “conservative” as those words have taken on meaning lately, as about someone who is jealous of the Judicial branch’s power and even more jealous of infringements on the Constitution.
The experienced and individual rights-respecting former JAG attorney Charles Swift appears to agree with you, Mary, as you probably know (because I believe it was the recent Olbermann interview clip with him that you highlighted in comments where I noted it). In that interview, without prompting, Swift strongly endorsed Judge James Robertson of the D.C. District, noting his military background, for a Supreme Court nomination.
Personally, I’d like to see Reggie Walton of the D.C. District given some consideration, partly to try to reclaim the good name and reputation of African-Americans serving on the Supreme Court.
In addition to his regular trial work as a federal judge at the district court level, Walton’s had valuable experience on the FISA Court (a ruling he issued backing the government, that was appealed, clearly impressed the FISCourt of Review, which upheld him – “meticulous,” I think they called it, in the redacted opinion that was released). [Perhaps Walton’s “meticulousness” is even behind the just-revealed and welcome FISA-related developments reported by Ellen Nakashima via W.O.’s link @ 28.]
Walton also did the heavy intellectual lifting on the limits of the president’s armed conflict detention powers in his Gherebi habeas holding last April, which the other Guantanamo habeas judges have since built on. “Meticulous” is also a good description of much of the work Walton did in the Libby case, which included making his way through a very intense graymail effort by Libby under the Classified Information Procedures Act – which would be valuable CIPA experience for any judge nominated to a higher court, given the towering dimensions of the secrets now claimed by the Executive Branch. Walton was also unafraid to hold journalist Toni Locy’s feet to the fire in the Hatfill case, just before (and perhaps explaining why) the government finally settled with Hatfill after witch-hunting him for years with regard to the anthrax attacks.
Jealous of both Executive/Legislative Branch infringements and of abuses of corporate money power – absolutely agreed.
I wouldn’t mind seeing Swift getting attention for the slot himself, especially if there’s a strong desire to get someone youngish in. He’s had exposure to a lot of different things and he’s not a coward – both of those things go a long way. They’d probably go after him for the military’s retribution of not advancing him *lack of diversity* in his experience.
I’d love Robertson.
Walton has a lot more to recommend him than Kagan. I guess we should be thankful for small favors and be happy that there isn’t much talk about Sunstein this round, although, regrettably, that seems to be the case for Chemerinsky as well.
But it doesn’t seem worthwhile to even speculate much – Obama is going to do what he’s going to do and it will be like the decision of a high school clique run amok.
That’s what we’re down to, isn’t it? “She’s not Cass Sunstein!”
The Audacity of Lowered Expectations.
Ain’t it the truth.
@81 – I can’t make that clear to them, because I’m already at not voting for them. I can’t threaten. OTOH, I’m always ready to be won over if someone ever does the right thing.
Fat chance.
Obama went from change to “changeling.”
whatever is wrong with editing and linebreaks?
“There would be lots of problems [..] from the recusal process, with the nomination of anyone who has taken a prominent position on these issues.”
You know, this did not even occur to me. In other words, there is a legal mechanism that incentivizes us to nominate the Kagans and Miers’ of the world, the closet actors and the blank slates? Because any statement outside a court decision, such as
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/19/wood/The_Rule_of_Law_in_Times_of_Stress.pdf
would require a judge to recuse herself? What about college papers? A graduation address? A republic build on this kind of tepid foundation cannot but crumble.
“I guess I don’t care as much on [“liberal” vs “conservative”] as about someone who is jealous of the Judicial branch’s power and even more jealous of infringements on the Constitution.”
Excellent point. Principles – almost any – would be good, too. But then, how would we know about them if they could not be articulated in any meaningful way?
“There would be lots of problems [..] from the recusal process, with the nomination of anyone who has taken a prominent position on these issues.”
You know, this did not even occur to me. In other words, there is a legal mechanism that incentivizes us to nominate the Kagans and Miers’ of the world, the closet actors and the blank slates? Because any statement outside a court decision, such as http://www.salon.com/news/opinion/glenn_greenwald/2010/04/19/wood/The_Rule_of_Law_in_Times_of_Stress.pdf
would require a judge to recuse herself? What about college papers? A graduation address? A republic build on this kind of tepid foundation cannot but crumble.
“I guess I don’t care as much on [“liberal” vs “conservative”] as about someone who is jealous of the Judicial branch’s power and even more jealous of infringements on the Constitution.”
Excellent point. Principles – almost any – would be good, too. But then, how would we know about them if they could not be articulated in any meaningful way?
Or just read Greenwald quoting Daniel Novack at the end of this:
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/19/wood/index.html
Recluse, recuse, refuse – if Mary’s point is accurate and silence off the bench becomes the standard requirement for juidicial nominations, then the apparatchiks will bury the republic.
Thank you for the post bmaz.
It is also unfortunate that with her possible nomination, the court loses a more balanced reflection of the US population.
bmaz
Ouch. Please tell us what you really believe!
I infer from your words, that you also believe Kagan is not qualified to be Soliciter Genreal. No trial experience.
Ms. Kagan is mightily talented, but she would be a poor nominee to the Supreme Court. The court already has a solid conservative majority. Obama can keep it that way, giving us a continuing string of 5-4 decisions that maintain delicate limits on executive power and which meekly protect civil liberties and the rule of law.
Obama could, instead, opt for a political placater like himself. If he does, he will empower conservatives, by giving them a more powerful majority bloc on the court. That will allow them to dictate the course of American law, and the political system whose limits it defines, for 50 years. Obama would thus move the country’s legal and political systems well to the right of views held by a majority of its citizens and his supporters. If Mr. Obama is consistent, expect him already to be compromising with himself and the country.
The Right can’t wait for his nominee. They will fight it, regardless of who it is, to whip up their base and their contributions, and to suggest they retain power, if only to block the government from doing its job. But if the nominee is someone like Kagan or Sunstein, when it comes time to vote, a bipartisan Senate majority will magically appear and it will confirm the nominee.
If the nominee is someone like Diane Wood, whom Glenn Greenwald’s research suggests would be a brilliant jurist, one likely to maintain the court’s current delicate balance, expect the Senate’s confirmation process to be a brawl. It will make Clarence Thomas’ seem like child’s play.
That’s because the Right knows what’s at stake. It is a single nominee away from obtaining a court Reagan would have wept to have, and a single nominee away from having to fight and sometimes lose in their attempt to impose their views on all of America. This is not a process about which one can be neutral or uninvolved. It is not one which can be artificially reduced to “follow the leader”. It is presidency defining choice Obama is about to make. No matter how badly the traditional medial infantilizes its coverage, the consequences of Obama’s choice will be momentous.
thanks for this. it makes the stakes crystal clear.
and, bmaz, i so appreciate your focusing in on this.
Thanks Bmaz
I didn’t follow her appointment as Solicitor General.
Why is she in that position again?
I agree with Bmaz about Kagan.
Now for the OT comment I’m really here to make. Everybody should read this WaPo article:
http://www.washingtonpost.com/wp-dyn/content/article/2010/04/18/AR2010041803681.html?wprss=rss_nation/nationalsecurity
(h/t Spencer)
I’ve been harping for years (literally) here that FISA didn’t allow the NSA to collect so-called metadata (To/From/Routing info on emails, numbers called from a telephone, etc.). Guess what, the FISC agrees with me. Why it took this long is beyond me (well, except to assume the Bushies were lying all this time). I wonder what triggered this.
I know how to shut Greenwald up.
appoint him to the Court.
on edit: (please)
Since Ginsberg could possibly retire during Obama’s term, we are in a scary position. He could really mess up the country for the next 50 years.
Unsurprisingly, Tom G*s latest, referenced, appears to support his initial evaluation of the spectrum of possible nominees, namely, recommending simplicity of the hearing process as a key SG EK feature; which is substantial, perhaps, for the administration*s associated equestrian trades. I have thought the constitutional scholar *accident* attributed to Obama*s form of polity inaccurate; it represented achievement that his curricula embarked on the field, however. I have learned to avoid both scotusblog and scotuswiki as they have turned partisan and imprecise much more often than when TG and AH managed them prior to the AG affiliation*s commencement a few years ago, though often there is helpful material posted there. I am not sure of the experiential issues which are the epicenter of the post*s critique of the shortlist trial-candidate. I thought the HLP case a quagmire from many vantages, especially its international law profile, and bringing that into the forray in Scotus. There is some interesting material online on Brandeis and Holmes, which I intend to study to inform my own critique of the shortlisting effort underway.
Before completely castigating Kagan, read the bio of the SCOTUS judge preceding Stevens. Not exactly the picture of a highly qualified person either, yet, for my money, Douglas became a giant.
He summarized his experiences on the bench as having shaped him rather than the other way around.
You are seriously going to compare Kagan’s elitist sheltered academic toilings and executive/corporatist leaning philosophy with the background and philosophy of William O. Douglas??? You have got to be kidding me; this is either a joke or simple madness.
I did forget to say that of course, it isn’t a comparison at all. Douglas is unique. But that doesn’t mean the book has been closed on unique, and as such, also on growth and humility in face of the tasks ahead.
That last one, humility, is what I respond to the greatest. It will be interesting to see this element as it appears in any of the candidates.
One rises to the level of his/her incompetence, but in some cases, learn from it and go beyond.
BTW, this is in response to the notion of unfit to serve by virtue of the lack of experience at the bench.
Only.
Yeah, I understood, and did not mean to be overly pricky in responding. I do have a real problem though with a Justice not having any background in functioning courts where common citizens interact, and Kagan literally has none. That would be unprecedented in the history of the Supreme court and when so much in current SCOTUS jurisprudence revolves around trial court processes, procedures and evidentiary rulings, I simply find it unacceptable to have no background whatsoever in it. I think there can be growth on the job in the ideology areas, but there is no way for her ever to gain that missing connection I am talking about; only to get further removed from it. And that is not good.
IIRC, experience in law is not a requirement for nomination or appointment to SCOTUS. Unnerving to consider, but again, referring to Douglas, he believed, at least in part with the “Legal realism” idea that pushed real world effects of the law. That you get in the trenches!
Well Kagan sure hasn’t been in any trenches; although she has quite a reputation for wining and dining fat cat Harvard donors.
That’s fine as far as it goes, but it’s the sort of thing that dominates, rather than rounds out her experience. That’s what I object to. I’d like to compare her work at opening up Harvard or HLS to nontraditional and disadvantaged students. I don’t think there’s much there to talk about. She seems too much like Obama, a creature of bubbled success.
Obama’s early youth was troubled middle class, for example, but once he was in school, his ability to earn favor and top grades kept him among the wealth and academic elite, barring a few voluntary years in Chicago. Unlike a Bobby Kennedy, it’s not clear what he learned except how to sell himself to working poor voters. He knew he could abandon organizing the poor for politics or Wall Street or a top law firm or university at any time. Unlike Sotomayor, that’s not having a lot of skin in the game.
She is literally known for opening up Harvard to conservatives like Jack Goldsmith and Cass Sunstein (yes I consider that twit to be a conservative).
Not the nontraditional or disadvantaged students or faculty I have in mind. It’s the kind of political triangulating and placating that she seems to have in common with Obama. And it’s what troubles me putting her on a Supreme Court already dominated by its conservative bloc.
Kagan hired Sunstein and just couldn’t say enough good things about him!:
“Cass Sunstein is the preeminent legal scholar of our time — the most wide-ranging, the most prolific, the most cited, and the most influential,” said Kagan. “His work in any one of the fields he pursues — administrative law and policy, constitutional law and theory, behavioral economics and law, environmental law, to name a non-exhaustive few — would put him in the very front ranks of legal scholars; the combination is singular and breathtaking. He has a gift for framing and discussing issues in ways that invariably gain traction and make progress. And perhaps best of all, this individual superstar is also the consummate team player — a person whose passion for reasoned intellectual inquiry is contagious and who raises the level of everyone around him. If I could add only one person to the faculty, Cass would be that person, and I am thrilled beyond measure to announce his appointment.”
http://www.law.harvard.edu/news/2008/02/19_sunstein.php
I think it is safe to say that Obama knows that he couldn’t get Sunstein onto SCOTUS, but he knows that Kagan has a better chance and would rule the same way Sunstein would.
Also here is Kagan calling on Presidents to have more power by essentially making a Cult of Personality argument about Bill Clinton:
http://stevereads.com/papers_to_read/presidential_administration.pdf
The obvious downside of relying on the President to be such a good guy is that you’ll also get in Presidents who aren’t so good and will do harm with the vast power Kagan advocates the Presidents to have. I think that is an important article since Kagan goes on and on about the OMB and that is where Sunstein works now (which BTW Kagan wrote this with Sunstein’s input).
I’d welcome any evidence of humility from Elena Kagan. Do you have any?
Not to mention that there will be no more surprisingly liberal judges any more. The Cons learned their lesson with Souter: From now on, nobody gets in unless they’re known and proven right-wing ideologues.
William O. Douglas had an independence of mind and strength of character that are strikingly absent in Elena Kagan, whose main qualification is that she’s a member of an insular, elite club.
I fear that this is Obama’s version of the Harriet Miers head fake. If you don’t like her, how does Sam Alito fit. In this case she goes down, so that Cass Sunstein gets in.
How does that taste to you?
It’s very much like Harriet Miers, but she wasn’t a head-fake: Bush really thought he could get her onto the court, and tried to dig in his heels when his own party objected. A similar situation obtains for Kagan, the main difference being that Rahmobama’s working the refs — in a rather blatant fashion — to try and either stifle objections to her or paint them as being about her alleged sexual orientation rather than her record. (Because if the argument goes from her lack of experience to her alleged orientation, that shores up support for her among progressives who don’t follow the law-oriented blogs by hitting the “gay martyrdom” angle.)
It is clear that Obama wishes to consolidate and build upon all the expansions of executive authority put in place under Bush/Cheney.
Why would he not appoint a SC Justice who would assist that?
It is the well known The Ratchet Effect in American Politics.
thats what you all vote for when you vote for (D) politicians, that is what they always do. it’s no mystery, thats what ‘progressives’ signed up for when they took their unrevokable vow to always vote (D), no matter what.
David Dayen has a fresh cross-post already in progress: PA-12: Democrat Mark Critz Doesn’t Think A Democrat Can Win His Election
But… the make-up of the Supreme court was the ONLY thing left for the Obomba apologists to hang their hat on. What WILL they tell themselves when he appoints a nominee worthy of George Bush?
“We’ll fix it later?” nah, that won’t work.
“He needs it so he won’t look like a failure?” nah, not really applicable.
“Baby steps?” OK, but we need a little more…
“Bipartisanship!” yeah, now we’re talking!
Baby steps, bipartisanship, and another coat of specially formulated turd paint. That’s the ticket! Apologia here we come.
Anyone who was silent on the Yoo memos until after they were repudiated by the Bush Administration itself is, in fact, unqualified for appointment to any bench.
Totally agree.
And to WilliamOckham @28, thanks for the link, and the doggedness on that story.
I was a critic of Elena Kagan from when she was first announced for the Sollicitor General position. Her confirmation testimony and lack of experience sealed my opposition. She is another status quo imperial Presidency loving hack.
I would disagree though that the Supreme Court should be made up of only judges or even attorneys. I think SCOTUS needs those who can look behind the letter of the law to deeper principles and issues. The current Court’s thinking is often unclear, disjointed, crypto-political, and altogether poor.
Those appointed to the court needn’t even be lawyers, but they ought to know the law. They also need a more thorough grounding in the school of hard knocks, a la Justice Sotomayor, both personal and professional.
A socially elite, distinguished academic bureaucrat is not what the Supremes need, any more than we need more elite journalists that earn as much as the politicians and corporate executives they report on, and finds itself more in sympathy with them than the public they are meant to serve. The Supremes are already at the center of the DC bubble and a “Justice” Kagan would gild that particular lily.
I don’t see why you put this in your comment:
SCOTUS needs those who can
look behind the letter of the law to deeper principles and issues. understand at an 8th grade level, and help interpret to the rest us. That is where it went off the rails.In the long run, it won’t be necessary, and the congress can desolve it, but for now the court can elect the president, meet in the night to make emergency rulings about T Sciavo’s etc. and rule that corporations are “just people too…” It would be nice if they would just read the document and what it says. Please leave the christal ball behind the words stuff alone.
The Constitution was supposed to be understandable for the 8th grade. Well written, revered as such, puts things so that the citizens can know they have a document that really exists, which the country and its laws adhere to. Erosion of this idea is great if you would like to go capriceous and unitary, but that is so complicated… NOT.
“crypto-political”
Nothing hidden about Roberts, Alito, Scalia or Thomas.
‘The official line in China was “loose on the outside, tight on the inside.” That meant the government wanted both to increase its political control and to speed up economic growth and reform. The Chinese wanted political stability and economic revolution.’
– from “Marx to Markets: Chapter 13– The Best Doctor” by Dean LeBaron
“The Chinese are estimated to have something like U.S. $200 billion in “under-the-mattress” savings, money the government would like to see back in circulation and used for capitalization [..]”
The US is simply being “harmonized” into that governance structure under the multinational banks pulling the “sovereigns'” strings. A “society that is dominated by corruption and the loss of commonly held moral standards” (from “What Does It Tell Us That So Many People in China are Practicing Falun Gong With Determination?“) is paramount. Hence why corporatists freak out in the face of such framing (e.g. Alan Grayson’s “If you get sick, die quickly”) as such so-called “Conservatives” Want to Take America Back to the 1880s.
A couple of interesting statements about Douglas in the wiki article about him:
“Douglas did not highly value judicial consistency or stare decisis when deciding cases.[9]”
and
“In 1944 Douglas voted with the majority to uphold Japanese wartime internment, in Korematsu v. United States, but over the course of his career he grew to become a leading advocate of individual rights.”
-ibid
Interesting about his stare decisis attitude.
http://en.wikipedia.org/wiki/William_O._Douglas
The issue as I understand it is not only about experience in the bowels of the law, which the court collectively lacks. It is about inexperience with the lot of the common citizen. Only two schools are represented, Harvard and Yale. No Berkeley, UCLA, Michigan, UVA, North Carolina, UT at Austin, etc. All the Justices might be Catholics; no Muslims, Jews, Protestants, Agnostics. To take another example, how many of these Supremes have an undergraduate science degree or medical or science professional background (dual professional degree progams churn them out)? I think the answer is none.
For such an important role in our society and government, this Court contains as narrow a slice of excellence as it does of humanity and human experience.
IANAL, so the fact that Kagan has been willing to defend the actions of the Obama Administration in keeping wrongly classified information from the public, continuing to detain terrorism suspects without trial, and (apparently) assassinating American citizens strikes me as sufficient to disqualify her. As Greenwald noted, she’s professionally obligated to represent her client, but is she professionally obligated to defend such obvious distortions of the Constitution? She strikes me as someone who has gotten where she is by being politically correct, in the classic Soviet sense of having opinions that are those of the rulers, rather than being good at what she does.
That’s a troubling thing to conclude about a Supreme Court nominee.
Round Two of the inevitable career progressive circle jerk. Greenwald has made the case against Kagan and for Wood. Let us count the hours until the Chris Bowers’ of the world will point out that Greenwald supporting Wood ensures Lieberman will vote against her, which means we should all root for Kagan instead, and oppose Wood as vocally as possible. Or are we already doing this, and Greenwald is really supporting Kagan? I am confused. But I am sure I will find the answer on OpenLeft!
Wood is the new Johnsen – if she could even get a nomination, that is.
This
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/19/wood/The_Rule_of_Law_in_Times_of_Stress.pdf
is exactly what the country needed of Obama, his peers and his sponsors, in 2002 and onwards, and because he was and is unable to take a stand, nobody that did will be tolerated.
Meanwhile. . . Mr. Sheri Gets Lakme-nia
God I hope he doesn’t nominate this woman. He seems intent on being the GOP lite President. What a HUGE disappointment. WTF have the GOP done for us in the last 30 yrs???? I thought that was the whole point of electing this asshole!! I voted Republican my entire life until 2004 & 2008. Bush cured me of my wicked ways for life….but I have to say this Dem congress and Dem Pres have really been eye openers as well. Very disappointing so far. Better than the GOP…don’t get me wrong…but very sad commentary on the future of this country. Our choices have boiled down to: get rid of all regulations, everyone for themselves, and only the rich survive….OR….we’ll slap you if you are bad regulations, we’ll help you buy inadequate health insurance from criminal companies, and we’ll throw a few extra dollars at public education. Really, really disappointing. Lets just say my “Democratic” experience is coming to an end. I suppose that forces me into the Indpendent category. Bahhumbug. I was so hopeful about Obama and the Dems. Well, lets hope he doesn’t pork us again, and actually picks an intelligent, proven liberal, well experienced, young nominee for the court.
The icon for all this might well be the Win7 WAIT icon…aka the toilet bowl icon!
If the choice was down to Harriet Miers and leona Kegan, I would go with Harriet, she looks more like a regular conventional woman who has some office experience and the like, but Kegan has a kind of particular crafted look like that some might think powerful, but if you get a woman she should have femine traits, or why bother?
In the same way, if politics is show biz for the ugly, what would you call SCOTUS… in view of
some ofthe characteristics, from a casting couch point of view…?Mens rea or the guilty mind that must accompany the guilty act for there to be a crime, except for Gitmo prisoners, of course, most of whom are there because of the mensarrhea of Dick Cheney, his putative superior and their successor. And except for those on the right who agree with Ed Meese and CSI fans, who think that the police always suspect and arrest the right person, regardless of the facts that suggest they can make mistakes at least as often as the rest of us.
Pardon if this has already been posted. Souds like bmaz read it already. *G*
Fried in New Republic: Everyone’s deanApr 19, 2010 … In The New Republic, HLS Professor Charles Fried wrote “Everyone’s Dean: Why Elena Kagan has earned the respect of conservatives, …
http://www.law.harvard.edu/news/2010/…/19_fried.newrepublic.html – 5 hours ago
We’ll have to make it clear to the nit wits in Congress that if they vote for this woman, we WON’T vote for them. Pure and simple. They have no values or integrity….it’s all about winning and money.
I’m not saying this is easy (especially for us “Americans”), but if one’s frame of reference is a philosophy of basic, common human goodness, then you answer your own question and know how to respond.
As an example, let’s use “Ubuntu” as it is one enunciation of such:
“Archbishop Desmond Tutu offered a longer definition in a 1999 book:[3]
A person with Ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good, for he or she has a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed.
Archbishop Desmond Tutu further explained Ubuntu in 2008:
One of the sayings in our country is Ubuntu – the essence of being human. Ubuntu speaks particularly about the fact that you can’t exist as a human being in isolation. It speaks about our interconnectedness. You can’t be human all by yourself, and when you have this quality – Ubuntu – you are known for your generosity.
We think of ourselves far too frequently as just individuals, separated from one another, whereas you are connected and what you do affects the whole world. When you do well, it spreads out; it is for the whole of humanity.”
Here are two manifestations of Ubuntu:
Desmond Tutu on Ubuntu
Nelson Mandela on Ubuntu
Keith Olbermann on tonight’s show talked about Obama’s Supremes nomination as the “anti-Roberts,” someone who could go toe to toe with the Chief Justice for the next 25 years. Doesn’t seem wise to me to pick a fight with the Chief Justice. Also, seems futile.
But towards the end of his interview with Jonathan Alter, I believe he got down to the real brass tacks: The nominee needs to become best buddies forever with Justice Kennedy, in order to draw him into the “liberal” (actually, moderate) sphere of influence.
Also, Alter, in summarizing the current small list of top candidates, included Janet Napolitano. Her name has been rising in recent press buzz. bmaz, I’m wondering if your pre-appointment assessment of Napolitano (back when you were agitating for Obama to nominate her for AG) remains as rosy as before? Her actions as Director of Homeland(!) Security have sometimes veered towards the authoritarian. What do you think now?
Bob in AZ
Janet has a definite law and order side about here; she is not necessarily overly progressive. She is more than competent and qualified, but there are others I would a lot sooner see on the Supreme bench. She was uniquely qualified for AG because she does have the law and order streak, has a fantastic resume for the job, and is a fantastic bureaucrat in that she has deep experience cleaning up and turning around big sprawling offices from doing so in both the Arizona AG’s office and the Arizona state executive branch, which was really bad when she got it. She is a great leader and knows how to pick good staff and delegate. All of which the DOJ was severely in need of and the failure to have someone that can really effect a broad change of attitude can be seen right now under Holder. It was a job tailor made for her skill set; SCOTUS is not, although I am sure she would be fine at it. She would be good; I think there are others that would be better on ideology. I also think Alter and Olbermann’s analysis, as described anyway, is childishly simplistic, inane and total claptrap.
i have two simple questions: 1) doesn’t kagan come from the neo-con family of kagans? 2) if so, shouldn’t that be cause for concern?
Just speculating here:
Greenwald had a big hand in sinking Tom Daschle’s nomination to serve as the Secretary of Health and Human Services.
So maybe Obama is thinking he doesn’t want someone who is perceived as a radical lefty (Greenwald) sinking a nomination and supporting an alternative that ends up getting the job.
If the the first choice goes down then the rightwingers and media can say she wasn’t left enough for the likes of Greenwald, and if the Greenwald suggestion gets the job, the rightwingers and media will say she’s too far left and that Obama is a lefty or bows to lefties.
Right. So everyone to the left of Obama (or, in this case, I’d say to the take-the-Constitution-seriously side of Obama) should just keep quiet so that Obama isn’t tarred with our left cooties? Just speculating, eh?