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.