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Responding To Commenters

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I don’t mean to join in making this an all-Kagan-all-the-time blog, but some commenters have raised points that may help to clarify the argument I’m making. The question of whether her views being known by Barack Obama guarantees a strongly liberal nominee (as opposed to a nominee at least as liberal as Larry Summers) I’m going to leave until later, because I address this in a longer piece I have coming out. But there are a couple other interesting points being raised that can be profitably addressed. First, from Martin:

It’s just that the right-wing tendencies of Barack Obama himself are important for the case you’re making, and those obviously haven’t been established, and the same goes for the lamentable need for SCOTUS nominees who don’t raise red flags during the nomination process.

On the latter point I have two words in response: Sam Alito. It’s just not true that someone with a clear ideological record cannot be confirmed. It was absolutely clear that Alito was a down-the-line reactionary without relying on the fact that George Bush was aware of his views, and it was also pretty clear that John Roberts was an orthodox conservative. And, similarly, a nominee with an actual record of having consistent mainstream liberal views could absolutely be confirmed in the current political context. (It may be true that after the midterms that more of a blank slate nominee is required — but of course this makes the Kagan choice even worse.) This assumption, I think, takes the wrong lesson from the Bork hearings. It’s not true that having a paper trail per se makes you unconfirmable; a paper trail might make you unconfirmable if you have have a history of writing stuff like “the Civil Rights Act is unconstitutional,” “the Constitution has no right to privacy,” “the First Amendment should be construed the way it was construed in 1798,” etc. etc. George W. Bush understood this, and got two justices who will vote pretty much the way Bork would have out of the deal.

Essentially, this argument buys into the idea that anything but a “smooth” confirmation process will extract a substantial political cost. The problem is that there’s no evidence that this is true, and in fact plenty of evidence that almost nobody votes based on what happens at Supreme Court hearings. And even if you believe that a president politically “needs” a nominee who can not only get confirmed but get confirmed easily for reasons I don’t understand, it’s not even clear that Kagan will generate much less opposition than Wood or Thomas would have. Yes, the “anti-military” and “in bed with Goldman Sachs” issues are 100% and at least 98% specious, respectively. But if we’re arguing politics, the merits of the charge don’t matter.

Then from Barbara:

You make it sound as if the ones in the top 200 can be listed in order of merit, as if there is one most qualified, followed by the second most aqualified, etc. This is the argument that opponents of affirmative action use. It is not persuasive there, and is not here.

On its own terms, I agree with all of this. Of course, Kagan is perfectly well “qualified” for the position. For a position like the Supreme Court — which doesn’t have the administrative responsibilities of, say, being the head of FEMA — what is required to be minimally qualified isn’t a whole lot. Some of the greatest justices of the 20th century had substantially less formal qualifications than Kagan. That’s all true. She’s perfectly well-qualified. In and of itself, I don’t care that she didn’t serve as an appellate judge.

But it’s not enough. The question isn’t whether Kagan is good enough. The question is why her, as opposed to the significant number of other candidates who are at least as well accomplished and have a much more proven record of constitutional liberalism. Her scholarship absolutely convinces me that she’s a very intelligent and careful scholar — but it tells me very little about what her jurisprudence on the Supreme Court will be like. That’s the issue. This uncertainty is a substantial risk, and it’s a risk there’s no reason to take in this political context.

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  • Scott de B.

    I’m still not sure who your audience is here. Is it Obama? I doubt he sees the pick as risky, given his temperament, and you haven’t really given him any reason to think otherwise. Is it the Senate? If you are arguing that they should reject the appointment, you need to make a positive case, not a negative one. I think that Presidents should be given significant deference when it comes to their judicial appointees (as I stated during the Bush administration). Are you trying to persuade us, the readers? Of what? That we shouldn’t be happy about the nomination? I’m not quite seeing the goal here.

    • Scott Lemieux

      It’s a blog. I say what I think, for whoever wants to read it. I’m not a Pajamas Media type who thinks that what I write will Change The World or whatever.

      • Scott de B.

        Except that you’re not merely giving an opinion, you seem interested in persuading us of something. At least that’s what your posts seem to be structured as. But I’m not sure what you’re trying to persuade us of.

        • Scott Lemieux

          That Obama could have made a better Supreme Court pick? I really don’t see this as hard to see.

        • The Wrath of Oliver Khan

          Just writing an opinion would be pretty boring if Scott didn’t actually try to persuade his readers that his opinion has merit.

          • mark f

            I like fishsticks.

    • Anonymous

      I’m still not sure who your audience is here

      I thought titling the post “Responding to Commenters” was kind of a giveaway. More largely, this reads as a contribution to an ongoing public debate about a major political decision made by the current president of the United States, directed at other participants in that conversation–the same general audience as about 95% of the stuff written here. I’m not clear why that would be confusing in this particular case.

      (I imagine if the authors of this blog believed their relevant audience was Barack Obama and Senators, the content might look a bit different.)

    • rea

      I’m still not sure who your audience is here

      Me, of course.

  • What difference does this argument make? Maybe Obama could have nominated someone more left-wing and got away with it (if he so wished). Maybe not, since the Republicans could filibuster until after the midterms if they wanted. But it makes no difference now.

    There is zero the left can do about it. There is no analogy to the situation of the right during the Miers nomination. Focusing on this is a waste of time.

    • Scott Lemieux

      I believe that by this standard roughly 99.999999% of all political commentary is a waste of time. And maybe it is! But I’m not sure what the point is in saying this in the comments section of a political blog.

      • Vance Maverick

        I resent your inveigling me into posting a pointless comment.

      • Fair enough. Bitch away. It’s a free country. Your and my right to say stuff that doesn’t matter is constitutionally guaranteed.

        I just think the Miers analogy could lead to a really dumb strategic decision if the left tried to do now what the right managed then, since the situations aren’t really comparable.

        • Holden Pattern

          since the situations aren’t really comparable.

          By which you mean what? Because the way I would think that the situations aren’t really comparable are the following:

          1) Obama is not as far left as Bush was far right. Obama is actually a cautious, close-to-the-vest don’t-rock-the-boat corporate centrist, with a flair for rhetoric that (if you don’t listen too closely) seems to position him further to the left than he is, and who has already betrayed a couple of the constituencies (civil libertarians, LGBT) who busted their humps to get him elected.

          2) The Dems in the Senate are mostly right-center-right corporatists (with a couple really glaring exceptions to the left) who aren’t as flat-out insane as the Republicans in the Senate.

          3) The Dems as a whole are basically chickenshits who are afraid to take any side in an argument except the well-funded corporate side.

          None of this says much good about the Dems, Obama, or Kagan.

          • Incontinentia Buttocks

            True enough…but apparently since saying so doesn’t change any of that, you were wasting your time saying it, at least according to some of the folks commenting here.

          • That just comes down to saying the Democratic Party is a more heterogenous coalition than the Republican Party. It could only be otherwise if it shrunk to about 15% of the vote.

            • Holden Pattern

              That is utter bosh, and you have to know it. Classic reactionary “America is a center-right nation” except it’s really not, but the electoral system is rigged so that the electeds are center-right.

              • Feel free to believe that. It’s your constitutional right to delude yourself about how marginal your political beliefs are in your country. Periodic election drubbings don’t seem to disturb your belief system, so pseudonymous Internet commenters from Canada won’t.

              • Holden Pattern

                No reply at this level, but you are a smug bastard, aren’t you? I’m not even talking about what *I* might prefer, but what the majority of the Dems thought they voted for JUST EIGHTEEN MONTHS AGO. Or did big corporations, corrupt bankers, endless war, and gutting social security suddenly become everyone’s preference? That’s hardly a radical leftist view.

                Of course, your smugness seems to indicate that it’s *your* preference, which is telling.

  • H-Bob

    I would like to see some nominees who had actually practiced law for 25 years, had a variety of clients (especially ordinary people rather than just corporations and the extremely wealthy), had to argue both sides of various issues (obviously for different clients at different times), had to argue on behalf of clients some positions they personally disagreed with and who can comprehend that people can legitimately have opposing views.

    Instead, the Presidents keep nominating judges who only practiced law for 10 to 15 years, primarily in government (representing only one client and one ideological position) or were law professors. Thus, we wind up with ideological cranks who can’t tolerate opposing points of view and lack practicality. Then everyone wonders why the Court is so polarized !

    • Glenn

      had to argue both sides of various issues (obviously for different clients at different times),

      As a litigator, I resent your underestimation of my creativity.

  • I don’t have any problem with any of that, really. There’s a component of wishful thinking here, which is wishing that Obama is more to the left than he actually is. If you posit that Kagan will be a very sensible, moderate liberal judge — which Obama may have good reason to believe — then the pick isn’t all that odd or surprising. Obama wants “Solomonic”-type judges who can thread a needle between liberal and conservative, with a little bit of weight on the liberal side. Kagan may be that. Indeed, Obama probably prefers that on the merits to a more solidly liberal judge.

    To the two words “Sam Alito” I would only say one word, which is “asymmetricality.” I don’t know if there have been any Diane Woods confirmed to the SCOTUS recently, but it does seem like the “liberal lions” everyone always praises are a generation or two back. That may be a reason to put new liberal lions on the Court, as Obama has chosen not to do, or it may be a proof that it just ain’t gonna happen anymore, no matter who’s in the White House or on Capitol Hill. And despite your assurances, you don’t really know which option is true either.

    On the political costs of a SCOTUS fight, I’ll take you at your word, but I inherently distrust phrases like “no evidence” in situations like this. It’s a little glib. “No evidence” usually means “the evidence is mixed but a reasonable view of it falls heavily on my side.” In other words, I’m willing to hear more about this.

    Kevin Drum wrote the other day that Obama has a “sixth sense” for annoying KD “just a little bit.” The Kagan choice is like that, it’s juuuuust a little bit too centrist and “safe” for my taste, but then, I have all the responsibilities implied by writing long comments on a very smart blog, and Obama has to run the free world. I say let him have his inch and a half tilt toward the center, and let’s not have a conniption over a choice made by a constitutional scholar (you don’t disagree with that characterization, do you?) who has shown extraordinary patience and good judgment in terms of tactics, overall. And that may involve frustrating the likes of us sometimes or often.

    • Scott Lemieux

      There’s a component of wishful thinking here, which is wishing that Obama is more to the left than he actually is.

      Well, maybe, although I don’t think I have any illusions. But this kinda destroys the “Obama knows her views so therefore she must be as liberal a candidate as can be confirmed” argument.

      • Oh, I agree with that. I don’t think I ever argued that Kagan represented the most liberal possible pick, just that she was unlikely to be unacceptably conservative. Of course, your placement of “unacceptable” may differ from mine, in that you take it as axiomatic that Obama’s project is or ought to be to create a SCOTUS that is as liberal as possible, and that confirmation fights are worth the pain and likely to be won before 2011, etc. But not everyone accepts all of those premises to the same degree.

        In fact, you could flip the Alito example and posit that the hard-right character of GWB’s picks and the current GOP problems securing office are not entirely separate issues (although I wouldn’t want to plead any kind of causality here). Insofar as Obama is not emulating Bush, there might be some wisdom there.

        • Scott Lemieux

          Well, sure. I mean “unacceptable” in the sense that I think that another Breyer is pretty close to unacceptable given this kind of majority to work with.

        • Holden Pattern

          I think the argument is that the American Conservative Movement, as represented by the GOP, operates on a ratchet basis. When they have power, they push everything as far to the right* as they can, leaving as many of their operatives in permanent civil service or judicial positions as they can. Then when they lose power, they do everything they can to stop anything from happening, while their installed permanent operatives change the underlying landscape to make things even more friendly to the ACM/GOP.

          And they do this over and over, pushing the country’s policies further and further in the direction they want to go, which in turn creates structural barriers to undoing the damage.

          Dems, on the other hand (and liberals, to the extent there’s an overlap) are afraid to actually wield power, to play the long game. Some of that is fear, some of that is to-be-fair-ism, and some is just that the elected Dems are largely bought by many of the interests that benefit from policies that the Dem base would like to see unwound. And then the Dems eventually fail (not least because they’re afraid to actually wield power) and the only choice is the ACM/GOP party. And the cycle begins again.

          So, the questions of “what is possible” and “who is optimal” looks very different depending on what you’re trying to accomplish. If you just don’t want a fight, and don’t want to actually do very much, well, a milquetoast corporate centrist is exactly the right nominee.

          • Holden Pattern

            *Right: The particular radical stew of anarcho-capitalism, foreign adventurism, and social and civil authoritarianism that constitutes the ideology of the American Conservative Movement. Not to be in any way confused with Burkean conservatism.

        • Hogan

          you take it as axiomatic that Obama’s project is or ought to be to create a SCOTUS that is as liberal as possible

          I’d love to have nine Thurgood Marshalls, and I realize it’s not going to happen in this reality. But in the meantime, could I have just one? Please? Would that be so bad?

        • Incontinentia Buttocks

          you take it as axiomatic that Obama’s project is or ought to be to create a SCOTUS that is as liberal as possible,

          I certainly don’t think it is his project, and while I’d love it to be his project, I don’t expect it to be, given his political views.

          My frustration is much more with the “left” beyond the White House who lack the leverage–and I fear even the desire–to push Obama to nominate a more liberal justice than he otherwise would as conservatives pushed Bush to the right in the case of Harriet Miers.

          • Yes, but Kagan just does not equal Miers, so the equivalency doesn’t hold. It would be irrational for left-wingers to revolt against Kagan. When Obama nominates someone manifestly as bad as Miers, I’ll be with you all the way.

            Also, this is one of the benefits/difficulties of having a majority coalition that does not treat any single set of tenets as dogma. Believe me, as much as it seems cool to be able to demand that kind of fealty from the president, the reality is that only lockstep minority parties can do that. Be careful what you wish for, etc.

            • Incontinentia Buttocks

              I think making Miers a kind of benchmark of badness is senseless.

              The question is not “is Kagan as bad as Miers”? Of course she isn’t.

              The question is “is Kagan bad enough to oppose”? I think the answer is a strong yes, but that the left lacks the political capital to effectively pressure a Democratic president the way the right can pressure a Republican president.

              • Right, but I’m not the one constantly mentioning Miers. Not saying you are either, but you did mention her, and a lot of people have been doing that, most prominently Campos. If you really believe that “the question is not ‘is Kagan as bad as Miers,’” how about refraining from comparisons that seem to imply that?

              • Incontinentia Buttocks

                There is a relevant comparison, but it’s not between the nominees, but rather between the reactions of activists in each party.

                Conservatives reacted negatively to Miers and, over the course of a period of several days, built the necessary political leverage to force the White House to change course.

                I think progressives lack the will, the skill, and the institutional foundation to do something like that to Obama.

                To me that’s the interesting comparison between the two situations. I’m absolutely willing to stipulate that Kagan is nowhere near as bad a nominee as Miers…though I think she may be as ideologically disappointing to progressives as conservatives feared Miers would be to them. And I suspect if we did have a nominee as poorly qualified as Miers, progressives would still be unable to roll this White House as conservatives rolled Bush.

              • I see no “reply” button on your post of 4:30, but in reaction to that:

                Just to be clear, you disavow the Miers/Kagan comparison but then aver that “she may be as ideologically disappointing to progressives as conservatives feared Miers would be to them.” First, that conclusion makes nonsense of your protestations that you are not comparing Miers and Kagan. If you’re going to make the comparison, own it.

                Beyond that, the statement is absurd, for two reasons (but not limited to those). First, one of the key moments that sank Miers was the discovery of a speech she had given some years earlier in which she stated that she was leaning in a pro-choice direction. It’s really not possible that Kagan could commit a heresy of that type, just based on you don’t like the cut of her jib. That isn’t going to happen.

                The other reason is that the Democratic Party, and liberals generally, are not as ideologically homogeneous as the Republicans. The Republicans have a relatively long list of beliefs that bind them; Democrats do not, not to nearly the same extent. Contemplating some future, I don’t know, Kelo ruling in which she breaks with liberals to affirm something hideous — it begs the question of, which progressive bloc would she be offending, exactly? There is no such consensus on our side on such matters, because we’re pragmatists and intellectually promiscuous, comparatively.

              • Incontinentia Buttocks

                that conclusion makes nonsense of your protestations that you are not comparing Miers and Kagan. If you’re going to make the comparison, own it.

                Well that’s just silly word chopping, Martin. You’re comparing the two of them, too. I can understand why you might object to the (ridiculous) view that Kagan is just like Miers. But to object to the very act of comparison (especially when repeatedly comparing them yourself) seems truly silly.

                Let me clarify my position so we’re on the same page (hopefully) here: Kagan is much more qualified for the Court than Miers. Claims that she is “just like Miers” are ridiculous. But comparisons between the politics of the Kagan and Miers nominations are potentially illuminating as are comparisons between any two Supreme Court nominations.

                It’s really not possible that Kagan could commit a heresy of that type, just based on you don’t like the cut of her jib. That isn’t going to happen.

                What do you mean “it’s not possible”? Do you mean that it is literally impossible that someone will find a speech by Miers in which she says something equally troubling to progressives? On what do you base that conclusion? I certainly have no expectation that anything like that will happen. But of course it is possible. And, if it did, I think Kagan’s nomination would still sail through the Senate with unanimous Democratic support.

                I agree with you about the heterogeneity of progressives (though I think you see it as a feature; I see it as an enormous bug).

                However, there are some things that progressives are as nearly united on as conservatives, e.g. torture. And I think that we would utterly lack the political capital to insist even on those areas of actual agreement.

                Or to put this another way: we’re describing the same phenomenon, Martin. You see it as a kind of essential fact about the metapolitics of the “left.” I see it as a mark of our utter political failure that has been normalized into being a point of pride.

              • Incontinentia Buttocks

                Ooops…an editorial correction.

                That paragraph should read:

                What do you mean “it’s not possible”? Do you mean that it is literally impossible that someone will find a speech by Kagan in which she says something equally troubling to progressives? On what do you base that conclusion? I certainly have no expectation that anything like that will happen. But of course it is possible. And, if it did, I think Kagan’s nomination would still sail through the Senate with unanimous Democratic support.

  • Marc

    I think that Obama has better political judgment than anyone in the discussion here. Basically, you think that nominating someone with strong “liberal” flags is worth a knock-down, drag-out fight which could be lost. He either doesn’t actually want such a nominee or he doesn’t think that the fight is winnable (or worth having). I think that he deserves a *lot* more credit from his alleged allies than he’s getting, absent evidence to the contrary.

    • Vance Maverick

      No doubt he has better information and judgment. But the point of discussion is to bring information and judgment out into the open, and I don’t see that your comment does that. You imply, I think, that anyone who could reasonably be expected to bring about more liberal results than Kagan (to the extent we can argue such a thing) would provoke a worse fight, and that Obama judges that not worth fighting. I’m not sure this is true.

      • mark f

        Exactly. I’m not a lawyer or a member of the legal community. I don’t have the time or resources to be aware of many potential candidates. And, not being in politics or academia, I don’t have personal or professional relationships with any of the potential nominees, either.

        But, as an American, I do have an interest in who sits on the Supreme Court. I’m willing to allow for a bit of “Well, I elected Obama to make these sorts of decisions,” but a blank-slate “just trust me” is a bit extreme.It wouldn’t happen if we weren’t cowed into pretending-with-a-wink that being a justice is just umpiring or looking up the right answer somewhere.

      • Marc

        Sorry that I was unclear. The heart of Scott’s argument appears to be that Obama should have picked a major fight to nominate someone that was both further to the left and had a public record to prove it. Whether to pick a major fight or not is a political decision, it could preclude action on other fronts, and the consequences of losing could be severe. So I’m arguing that the premise (namely, that there is no cost to Scott’s course of action) is at minimum debatable, and that Obama is far better positioned to make it than I or Scott are.

        • Incontinentia Buttocks

          It’s not at all clear to me that Wood would be more difficult to confirm than Kagan given the utterly kneejerk nature of Republican opposition. A number of legal analysts have said that anyone on Obama’s shortlist would have been entirely confirmable.

          In the absence of much stronger evidence to the contrary, I assume that Obama selected Kagan because he’d rather have Kagan on the Court than anyone else.

        • Scott Lemieux

          1)WHat;s your evidence that, in fact, Wood would have provoked a bigger fight than Kagan?

          2)Even if we assume that this is true, I disagree with the premise. I think that Obama’s position tends to encourage the overestimation of short-term political tactics. I can understand politicians not wanting to accept that elections are driven primarily by economic fundamentals, but they are. And so I don’t see why I would defer to Obama’s judgment that getting 5 more no votes for a judicial nominee will have negative political consequences. There’s no evidence that this is true, and not even any good reason to believe that this is true. Most people don’t pay attention to judicial confirmation hearings, and those that do are overwhelmingly likely to be well-informed voters who already have strong partisan commitments.

          • “I think that Obama’s position tends to encourage the overestimation of short-term political tactics.”

            Huh? This is carefully worded, and perhaps designed to confuse. Obama’s tactics have the longest fuse of any politicians I’ve ever seen, so I have no idea what that means.

            • Holden Pattern

              Eleven-dimensional chess? Really? Ockham’s razor says he’s just a cautious centrist, and the eleven-dimensional chess story is apologia.

              • I didn’t bring up chess; many episodes from the campaign demonstrated Obama’s willingness to stick with a strategy that would make him appear more reasonable a few weeks or months down the road. His tenure as president hasn’t been any different.

              • BillCinSD

                This is really wrt Martin, but there was no reply button on his comment.

                Is a few weeks/months now the standard for long term thinking? That is nothing in the tenure of a SCOTUS judge

            • Scott Lemieux

              I actually agree that Obama is much better than many politicians at thinking long-term (you could see that in the primaries.) But it’s till likely that he overestimates the impact of tactical skirmishes on political outcomes, in part because it’s almost impossible to underestimate them.

              • True. His aversion to skirmishes and his long-horizon tendency are functionally pretty much the same thing.

    • It’s true that not all of us share your faith in the wisdom of the Dear Leader, but in addition to that there is a real question as to whether any big fight over any of the leading candidates was in the offing this time around. It is generally conceded that Diane Wood, the most “dangerous” of these, would still have made it through this Congress without too much Sturm und Drang.

      • It is probably not accurate to boil the choice down to Kagan vs. Wood– even though I was hoping Obama would pick Wood. On the list that we knew about Kagan was the youngest, and I think that is probably what carried the day here. All else being equal Obama was going to pick a woman if he could, and the youngest woman possible.

        And you know what? If she’s the most conservative person who grew up in the 60s and 70s on the Upper East Side she’d still be to the left of most of the country, and most of the Supreme Court.

        • Davis

          Not to nit pick, but she grew upon the Upper West Side, a big difference politically.

          • It’s a big difference if you live in Manhattan. Anywhere else in the country I think you’d find the two indistinguishable. That said, Upper West Side is even better from my point of view.

            • Scott Lemieux

              Yes, this actually half-salvages your argument. The UES is unusually liberal for an extremely wealthy area, but there are plenty of Republicans there.

        • Anderson

          Exactly. Wood is, what, 60?

          Why the fuck would Obama blow an appointment on a 60-year-old?

          Hell, why not just nominate a really liberal 80-year-old and make LGM blow out the joy meter?

  • Barbara

    Thanks for the clarification. I agree that he could have picked someone I like better. H-Bob is right about both preferable backgrounds and nominations. Obama seems to be a safe-pick, middle of the road kind of guy, though; and Kagan is qualified. If my characterization of him is right, who would you pick instead, who is qualified, has a reputation for fairness, and fits the “limited print record so that things don’t drag out for months on end”?

    • Bobby Thomson

      Start with Diane Wood. Not a limited print trail, but not one that can be impeached without the impeacher winding up with excrement on his face.

      • Barbara

        you cannot change my definition and then say Diane Wood meets it.

        • BillCinSD

          Why does a limited print trail mean that things won’t drag out for months and months? or s long print trail not mean a short process?

          With a limited print trail, won’t much time get spent trying to find out her principles?

          I suppose you could argue that if she successful fends off these inquiries (which 15 years ago she said nominees should answer, although she changed her mind yesterday) her confirmation will then be faster, but the overall time seems likely the same.

  • norbizness

    It is weird to hear about ‘risk’; is there some conceivable context where she’s the fifth vote in a reactionary bloc and Kennedy isn’t? Hypothetically speaking, would Hamdan have been decided differently?

    As for your central point (there’s a better candidate), I don’t think that’s much in doubt, but horribly moot.

    • Scott Lemieux

      On the current Court, sure, I agree that it would only in a very rare case matter whether you had Stephen Breyer or Thurgood Marshall to fill Stevens’ seat. Kagan will be on the COurt well after the current configuration has changed, however. Just as it certainly matters that Kennedy rather than Scalia is the COurt’s median vote (even if it didn’t immediately matter much whether Scalia or Kennedy got Rehnquist’s seat.)

    • hv

      But Kennedy retires soon.

      Can we decide if we are playing for the win or playing for the loss with respect to Obama’s successor? If Hillary wins in ’16 and ’20 and we have 2 blank slate centrists on the court where we could have 2 leading liberals… won’t we feel a bit foolish?

      • norbizness

        I understand; I was just responding to the concept of “risk,” as if some was currently at stake. Even if they put Kagan clones in Ginsburg’s and Kennedy’s spots, we’d still be talking about a solid 5-4 majority (i.e. more certain than now), right?

  • TT

    How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

  • Davis X. Machina

    It’s just not true that someone with a clear ideological record cannot be confirmed.

    They can be confirmed if they’re a Republican, because you can make a coalition large enough to confirm a Justice Roberts or Alito out of the Republican Republican Senators, and the Democratic Republican Senators but you can’t make a coalition large enough to confirm a Justice Guinier, or a Justice (Duncan) Kennedy, out of the the Democratic Democratic senators.

    • Scott Lemieux

      OK, but then there’s a lot of space between “more demonstrably liberal than Elena Kagan” and “Mark Tushnet.” I don’t think nudging things a bit towards the latter is unreasonable.

  • wengler

    I don’t have much to add to this other than to say that 3 justices on the Supreme Court(Kennedy, Scalia, Thomas) should be brought up on impeachment hearings for their unconstitutional actions during Bush v. Gore.

    So you know…3 more openings! Plenty of room in there yet for leftwing democratic-centered justices.

  • DocAmazing

    Much is made of how right-wing the rank and file of the US is, but it just isn’t true: it’s dependent on the framing of the issues. Look, I’m a San Franciscan: I’m a coastal elitist who takes a back seat to no one in my disdain for Flyover America. Yet even I see that people in The Big Middle understand that their jobs have been offshored, that money is flowing to fewer and fewer hands, and that corporate power is out of control. However, the political duopoly continues to circumscribe their choices and the corporate media continues to propagandize, distract, mislead and lie.

    I’ve been very unimpressed with Obama and am very unimpressed with his choice of Kagan–this isn’t the time for mere caretakership, after all; we have a lot of damage to repair, and caution isn’t the way to do it. Positing that Kagan will necessarily be to the left of most of the country just because she’s a New Yorker or educated or (fill in reason here) does a tremendous disservice to most of the country.

    • Holden Pattern

      But you are marginal in your own country, says Pithlord, smugly. That being of course, apparently a happy thing for him, he of national health care and no aggressive war bleeding out half of his tax dollars. Perhaps he should emigrate, say to Texas.

  • Ed Marshall

    The first thing I thought when I heard Kagan was that it a sort of slap at Scalia because she had been sort of nasty with him (by the standards of a Solictor General talking to Court Justice) during Citizen’s United and that’s been Obama’s public feud with the court.

  • larryb33

    Essentially, this argument buys into the idea that anything but a “smooth” confirmation process will extract a substantial political cost. The problem is that there’s no evidence that this is true, and in fact plenty of evidence that almost nobody votes based on what happens at Supreme Court hearings. And even if you believe that a president politically “needs” a nominee who can not only get confirmed but get confirmed easily for reasons I don’t understand, it’s not even clear that Kagan will generate much less opposition than Wood or Thomas would

    This is a huge point. Kagan will be opposed because the Republicans don’t know how to do otherwise so Obama should use his political capital. If not now, when? What exactly is the use of having it if he is not going to use it for such an important and long lasting legacy.

  • hv

    “It’s just that the right-wing tendencies of Barack Obama himself are important for the case you’re making, and those obviously haven’t been established…”

    Ok, time to talk about the elephant in the room!

    On the same day Kagan was named, other parts of the Obama administration were arguing to remove Miranda warnings to “suspected” terrorists.

    Does that count as right-wing enough?

    Regarding torture, civil liberties, IP regimes, and LBGT rights… Obama hasn’t even been centrist, he’s been Bush III. (And those are all SCOTUS issues.)

    ===============

    BOTTOM LINE:
    We don’t know Kagan’s views but there is a reasonable chance that she won’t turn out to be a solid liberal leader.

    It is very, very sad that Republicans want blank slate judicial nominees so that their opponents can’t figure it out — but Democrats want blank slates so their supporters can’t figure it out.

    • Incontinentia Buttocks

      It is very, very sad that Republicans want blank slate judicial nominees so that their opponents can’t figure it out — but Democrats want blank slates so their supporters can’t figure it out.

      hv has just won the thread

      • Ed

        I second that. Can we give hv a ribbon or something?

    • Martin

      It is a great post, but as I understood it, the Obama administration was asking for Congress to pass a law making that OK. Hardly anyone’s idea of a reckless executive disregarding checks and balances.

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