Gerry Canavan

the smartest kid on earth

All about Kagan

with 10 comments

I still find myself pretty solidly in the Greenwald/Campos/Digby caucus on the Elena Kagan nomination. As Scott Lemieux argued earlier today, there’s just not enough in her record to justify her nomination at a time when Obama already has 59 senators certain to vote “yes”: “In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended.” If we take Steve and Ezra’s framing of this as a “trust us” high-stakes gamble—and perhaps many people do still blindly trust Obama to make decisions of this sort—the progressive response is that it didn’t have to be. Obama could have gotten either Diane Wood or Leah Ward Sears confirmed; he chose not to, and probably won’t next time either.

A totally unambitious selection that will likely do little or nothing to push the Court leftward, the Kagan selection has squandered our last, best chance to challenge the radicalism of the Bush appointments, while at the same time putting forth a nominee whose totally sparse record could actually make her harder to confirm than a more experienced jurist, litigator, or academic. I just don’t see the strategy.

That the case for Kagan is paper-thin at best seems to me to be utterly self-evident; watch, for instance, Glenn Greenwald decimate Jamin Raskin (a supporter of the pick) in this video from Democracy Now. Raskin is essentially unable to come up with any points in Kagan’s favor whatsoever. Across the Internet, the only counterargument to the Greenwald position that is ever presented is “Obama knows what he’s doing.” I grow weary of being told Obama knows what he’s doing.

Of course the right is doing its damnedest to make me like her, with gay-baiting and slavery-defending their most offensive opening bids. (“But she’s a bad driver!” clocks in at #3, “There aren’t enough men on the Supreme Court!” at #4. And then there’s Glenn.) In short the opposition seems totally unserious and that her nomination will probably be fairly easy (though maybe not). Either way, Obama should have swung for the fences; with big losses coming in the Senate this November, he likely won’t get another chance.

It should be said, in postscript, that Mightygodking thinks this is all still just eleven-dimensional chess, and I’ll admit that if that’s the thinking I can almost buy it. Climate Progress has also weighed in in Kagan’s favor, noting a Green Energy Report that Kagan “has a reputation as a supporter of environmental law and as a lawyer who takes climate change seriously.” That’s good! But it’s not enough to make me happy with the pick.

10 Responses

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  1. given everything you’ve said (and i haven’t read anything different) isn’t the most likely scenario that obama DOES know what he’s doing, likes/agrees with elena kagan and thinks she’ll make a great justice? why does it always have to be some complicated/ self-defeating scheme? when do we get to conclude that obama ‘really is’ a centrist?


    May 10, 2010 at 6:35 pm

  2. I feel like senate dems – at least those few who call themselves progressive (assuming they exist in the senate) – should vote against Kagan. In the case of watered-down legislation, voting from the left against the majority is going to cause problems; but in the case of a shitty Supreme Court nominee, I see no significant potential fallout in voting against the POTUS.


    May 10, 2010 at 7:24 pm

  3. Ryan: No, I agree completely, and I wasn’t trying to suggest otherwise. That was my point about Ward and Sears; he *chose* Kagan over them because he prefers Kagan to them. Even if Obama’s “really” a centrist, though, his approach here *is* self-defeating. When we fill our nominations with Kagans and they fill their nominations with Alitos, over time we lose ground whether we think Kagan or Stevens or someone further left is the optimal justice. You have to go left just to stand still.

    Alex: I think I agree with this too, at the very least on “making a credible threat” grounds, but even Greenwald thinks they’ll never do it. Maybe we should all write Bernie Saunders to at least make the gesture.


    May 10, 2010 at 7:58 pm

  4. First off, I’m finding Lessig’s reproaches of Greenwald to be pretty compelling.

    Secondly, Ezra was on Olbermann last night and he made the (reasonable-sounding) case that the reason the right could pick an Alito was because he was a fifth conservative justice. Kagan is a fourth liberal and as such would be less effective at winning majorities than a liberal firebrand would be. I’m not saying it’s the call I’d have made, but it does make sense from a strategic POV. After all, winning cases is the point, right?

    Bill Simmon

    May 11, 2010 at 6:24 pm

  5. wait, *more* effective than a liberal firebrand would be. You know what I mean.

    Bill Simmon

    May 11, 2010 at 6:24 pm

  6. […] supposed ability to convince Anthony Kennedy of things. (Bill makes one version of this argument in the comments, though he himself doesn’t quite endorse it.) Like pretty much everybody I’m skeptical […]

  7. I’m not sure I get the antipathy from the left towards Kagan. Campos’s “thin record” arguments and comparisons to Harriet Miers are silly on their face. The one substantive critique worth discussing is Greenwald’s concerns about her views on executive authority. I suspect she would, in fact, be deferential towards the executive branch, but it’s not clear to me why this is necessarily a liberal/conservative issue. I guess it’s taken on that sheen in recent years because most of the conflict has been in the security/terrorism area, so fair enough. But it also means Kagan is more likely to uphold vigorous action by administrative agencies (EPA, OSHA, etc). I think that’s really where she’s coming from.

    What else am I missing that makes her the dread “centrist.”

    Shankar D

    May 12, 2010 at 5:16 pm

  8. I’m genuinely agnostic on the question of Kagan’s actual positions; I don’t think we have much information on which to judge. I’m worried about opportunity cost — why her, now, at the apex of Obama’s Senatorial strength, as opposed to someone like Wood or Sears? She seems harder to confirm than these people (because she really does have, despite your scorn, a fairly thin record, and can therefore be easily attacked) and she also seems like a worse pick (because we don’t know what she really thinks or how strong an advocate she will be for progressive positions on the court). From my perspective she’s lose-lose.

    Wouldn’t you have picked almost anyone else on the shortlist first?


    May 12, 2010 at 5:25 pm

  9. I think the opportunity cost point is a fair one coming from folks who are uncertain as to what kind of judge Kagan might be and would prefer a stronger progress. That argument will be all the stronger if they don’t make a serious, meaningful push to pass the American Power Act this summer. Because if they don’t, then why not spend the political capital on a more clearly liberal nominee, at a time when you have the largest Senate Democratic majority that you’ll probably ever have during this Presidency?

    This really is a “wait and see” kind of nomination. She could be John Roberts, or she could be David Souter. I think there’s reason to be unsure, but I don’t think there’s much reason to stamp her as a centrist or reactionary or whatever. (I will say that age and the alleged ability to chart coalition-building legal rationales are points in her favor, but again, only if are comfortable that she’ll be a basically liberal judge; otherwise, those skills won’t do much for liberals. And people are fairly agnostic on that question.)

    One point of disagreement: I actually think she’s quite confirmable, moreso than Wood, for the same reasons that progressives are unsure and suspicious of her. The problem with Harriet Miers wasn’t that she wasn’t a prolific scholar, it’s that she wasn’t any kind of scholar at all. No one can seriously make that claim of Kagan, though I guess Paul Campos is trying.

    Shankar D

    May 12, 2010 at 7:13 pm

  10. That first sentence should say “stronger progressive.”

    Shankar D

    May 12, 2010 at 7:14 pm

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