Summing Up What’s Wrong (And What’s Not Wrong) With The Kagan Pick
I have a piece up at TAP that sums up my position on the Kagan pick. What I see as the core of the argument:
But it must also be noted that plenty of candidates, including all of the other members of Obama’s shortlist, exceeded the formal minimum qualifications by an even greater margin. To say that Kagan is reasonably qualified for the Supreme Court does not constitute an affirmative reason to select her instead of an arguably more accomplished and more clearly liberal candidate such as Diane Wood or Sidney Thomas. When considering a Supreme Court nominee, a president should be looking for something more than merely “good enough.” Kagan may be to the left of John Roberts, but that still leaves a lot of ideological territory open. Two historical Supreme Court nominations illustrate the magnitude of the risk Obama is taking.
First, consider the case of Byron White, a John F. Kennedy appointee. Although little public record of his constitutional views existed, White was well known to the Kennedy administration and had views broadly consistent with mainstream Democrats’. On civil rights and federal power — the issues of the greatest interest to the Democrats of the early 1960s — White remained a consistent liberal throughout his career. But White was less solid on the civil-liberties issues where the Kennedy administration’s commitment to progressive values was more dubious. He dissented from many of the Warren Court’s landmark rulings on the subject, including Miranda v. Arizona. Over the course of a long judicial career, he also proved to be a surprisingly consistent ally of William Rehnquist on the new issues that inevitably arose before the Court, such as abortion.
And so liberals had a Democratic appointee who dissented in many of the Warren and Burger courts’ liberal landmarks and wrote the Court’s appallingly homophobic opinion upholding laws banning “sodomy” over the dissents of two Republican appointees. This is not to suggest that Kagan will vote to overrule Roe v. Wade or Miranda v. Arizona. After all, what it means to be a mainstream Democrat is very different in 2010 than it was in 1962. But it does suggest that putting a relative blank slate on the Court carries a substantial risk of ideological heterodoxy and drift.
We should also remember Ronald Reagan’s handling of the nomination of Robert Bork. As Jan Crawford Greenburg explained in her recent book about the Court, had Reagan nominated Bork instead of Antonin Scalia while the GOP controlled the Senate, it is overwhelmingly likely that Reagan could have had both on the Court. Instead, Reagan had to settle for the more centrist Anthony Kennedy.
So why is Obama repeating Reagan’s mistake now? Kagan is the youngest and perhaps the most easily confirmable of the top Supreme Court candidates, and Obama is virtually certain to receive at least one more appointment just as the Republicans are virtually certain to gain substantial representation in the Senate this year. It would be smarter to let Kagan get more experience as solicitor general and to use this opportunity to nominate a candidate who might face a tougher confirmation later on.
Indeed, Obama may be doing Reagan one better, as nominating Kagan presents the possibility of getting two liberal equivalents to Kennedy rather than just one, as getting even a mainstream liberal confirmed in a closely divided Senate will be difficult.
The first big issue I’ve already discussed, but I think it’s clear that “Obama knows her views well” isn’t a very convincing argument. It could be that Obama knows that she’s a solid liberal. It could be that Obama is comfortable with a moderate on the Court, just as he’s comfortable with moderates running economic policy (and an outright conservative running the Federal Reserve.) We don’t know, because the category “mainstream Democrat” encompasses a lot of room.
But I think the second point is decisive, and I have yet to hear a decent response to it. Kagan is a risky (from the standpoint of liberal constitutional values) pick in a political context in which such risk is politically unnecessary. I think that’s the bottom line.
Very good article, and I’m grateful for an LGM dissent to Kagan I can get behind! (As I said many times, I was annoyed by the selection too, and would have preferred Wood.) Campos annoyed me with his faux obtuseness, his disrespect towards his liberal opponents, his need to argue that Kagan’s academic work is beyond contempt, and the excessive Miers comparison; none of these are present here. All of the parties in this debate are liberals in good standing, and it’s good to remember that when a dispute arises. Comparing Kagan to Miers has the effect of driving home how dissimilar they really are! So it’s just kind of poor tactics. And that’s what I was responding to all yesterday.
Well done.
These posts are becoming increasingly pointless. Do you honestly believe that there is any chance whatsoever that Obama will withdraw the Kagan nomination because of liberals making strategic arguments like this? The only chance that the nomination gets pulled is if there is some smoking gun that comes out. Chances are such a smoking gun would rally the right (and not the left) against her and, if that happens, chances are we’d get Garland.
This comment is pointless, unless expressing an opinion has a point beyond the possibility of altering the course of human history.
It indeed has a point: that is for Campos and Lemieux to stop boring us with tedious haranguing about a fait accompli. The blog’s reaction to this has not been thoughtful. It strikes me as a rather cheap traffic-generating stunt.
LG&M will get greater-than-usual traffic for any nomination because they have built trust over time on this subject. Mr. Lemieux was a Koufax finalist for his coverage of Roberts and Alito.
I would also like to thank him for staking out a position I can point to and completely agree with that is not a wild effort to destroy the nominee with anything that sticks.
Scott, correct me if I’m wrong, but the point of this post (and the TAP article) is to criticize the nomination, not suggest that it’s likely to get pulled.
Are all political opinions “pointless” if they don’t “win,” GeraldY?
But I do think you have a point: this nomination won’t be withdrawn. And those of us to the left of this president have to ask ourselves why we have so very little power even to insist that a Supreme Court nominee be clearly as liberal as a Rockefeller Republican like Stevens.
And the point of such an inquiry wouldn’t be to beat ourselves up but rather to figure out what we need to do–institutionally and organizationally–to build the kind of political power that would make such objections less “pointless.”
I would like to add this pointless comment: IB has basically been speaking for me throughout these discussions about Kagan (thanks, by the way!). So whenever you see one of IB’s comments on this matter, just add at least one “me too!” to it. Now, back to book writing….
The problem is you’re viewing this from your own perspective. White was what the Kennedy administration wanted – as you identified in your own post, Kennedy was far less than solid on civil liberties, much like the justice he nominated. Obama is, or at least has become, a moderate liberal, and he’s going to nominate moderate liberals. Wood would have been preferable to you, and to me, and to many others – but that doesn’t mean that Kagan’s views aren’t exactly what Obama is aiming for.
At the risk of annoying Martin (sorry, Martin): Harriet Miers was exactly what the Bush administration wanted–a crony they could reward with a lifetime appointment to the court–but movement conservatives wouldn’t let them have it.
I have little doubt that Kagan (who is, as Martin correctly says, entirely more qualified than Miers) exactly what Obama wants.
The political question is why progressives in his own party are so week that he can so easily get what he wants.
er….”weak”
(ever considered a preview button, LGM overlords?)
Didn’t the movement conservatives spend 20-30 years organizing and fundraising to get to their current position? I mean, wasn’t the original rallying point Goldwater?
My impression of the “progressives” is that it is a diffuse movement and that is very young, far away from a solid power bloc that commands respect because of organizing ability and money. Though the administration may realize in the next election how much grass root support they have tossed aside….
Exactly my point, bph. We need to get going on that 20-30 year trek, instead of being pleased as punch about electing lesser-evil centrists who “surprise” us by governing like centrists.
But here’s where I disagree:
If the powers that be in the Democratic Party were capable of “learning” that lesson, they would have done so in 2000. But they’re not (and this was, incidentally, the fundamental political error of Ralph Nader….thinking that “spoiling” an election would move the Democrats leftward). I think progressives often mistake center-right ideological conviction for mere political calculation on the part of people like Barack Obama. It might be possible to force centrist Dems to inch leftward, but they’d need to feel that that was their only option. So far, centrist Dems have found that threatening the “left” with the greater evil of the Republicans has made tacking to the left largely unnecessary on most issues.
Ultimately, there’s just no substitute for electing actual progressives and building independent structures of progressive political power (think the CIO in the 1930s).
I think one of the biggest fear of this SCOTUS pick is that liberals may very well be about to experience a Souter in reverse. And another thing, it is becoming increasingly clear (if it wasn’t before even though all the signs were there) that while this whitehouse may lean just slightly to the left idealogically, their governing instinct is decidedly moderate. In fact I believe this is a whitehouse that will not be too disappointed if the window of negotiations on various issue of the day is slightly right of center. I think it is time for liberals to inculcate the message that this whitehouse is not in the fight the liberals are in, which is moving the arena of discussion leftward. If leberals hope to influence this arena, I think the first step is to assume that the whitehouse is on the opposite side of this divide.
I think the worry is that Kagan might be a rubber stamp for restriction of civil liberties or excessive executive power.
What’s really weird about that is the evident implication that *Obama* wishes to restrict civil liberties and wield excessive executive power.
That, really, is the conversation we should be having. This isn’t about Kagan. It’s about Obama.
Clearly, Professor Lemieux merely has it in for Ms. Kagan because she’s a Hunter College High School alumna.
Just figured I’d get that out there early in case any self-appointed Anti-Firebagger Loyalty Squad members arrive in the thread. And no, it doesn’t make any sense. Neither does “OMG! We have to pick Kagan, because Wood is the same age as Alito, and only thirty years younger than Stevens!” Or “Eugene Volokh thinks she’s keen, and liberals should take their cue from someone who defends flagrant racism by law students by using a fatuous ‘Just Asking Questions’ maneuver far above his scientific pay-grade.”
So, am I innoculated against the accusation of lifting Grover Norquist’s luggage along the Appalachian Trail?
Sorry, Doc, but not with those photos already out there.
[...] will all be obvious to most of LGM’s politically sophisticated readership. Some commenters, however, have advanced the radical thesis that my blog posts have not had a direct effect on the [...]
Aaaaaaand we’re already hearing that Kagan’s college thesis proves she’s a socialist. Thank goodness President Obama didn’t nominate someone too obviously liberal.
Funny, I reached the opposite conclusion. If nominating a blank slate centrist doesn’t torpedo those kind of accusations, what was the advantage of nominating a blank slate centrist again?
If we have to deal with the muck IN ALL CASES, let’s at least get a gem of a justice out of it.
I was at a demonstration once where the cops started fingering their pistols. Many turned and fled. One guy in a raincoat shouted out “My front makes as good a target as my back!”. Many stopped fleeing and regrouped around the raincoat guy.
I’m sure this has some relevance to the above.
This, exactly. I understand people defending Kagan on her merits but don’t give me the “Wood would have been a big fight!” thing. Anybody’s going to be a big fight. And at least Wood had unity left-wing support.
Yeah, me too. I’m just going to have to give up sarcasm completely, aren’t I?
Obama is a centrist. He’s learned the lessons of a biracial man needing to keep those around him in a state of non-hysteria too well. He’s learned that projecting calm helps others remain calm. He’s learned that non-threatening decisions makes others feel less threatened. That being rational, Spock like, gives his opponents little room to get an edge on him, because he’s smart and understands how the inside poltical game is played.
Two unfortunate realities intrude. First, those lessons don’t scale up in the current political environment. Hysteria is rampant and will remain so. No amount of persuasion on his part will calm the ‘true believers’ on the other side.
Second, while Obama did not sell a straight up progressive, liberal agenda in 2008, he did sell something else that he’s not delivering in his policies and appointments. Imagination. Change was obvious, he’s not Bush. And without all the specifics, he did promise boldness and an imaginative approach to governing.
But sadly, that was salesmanship. That brand is completely at odds with his personal restraint system that has served him well to the point of getting elected – Don’t push the envelope.
He’s deliberately plodding, non-confrontational, non-threatening, and completely part of the Establishment that brought America to the dark place we are today.
He’s not Carter, he’s not Bush. But he’s not Truman and certainly not FDR, either. The country needs more, a lot more, of constructive assertiveness in terms of business regulation and economic policy. And smarter people working on the policies than the corporate shills he has appointed.
Kagan just looks like more of the same risk aversion strategy.
The thing about you example of Byron
White is this: White was sound on the issues that the Kennedy Adminstration could foresee at the time. On some big issues that the Kennedy Administration didn’t particularly care about, and did not particularly foresee at the time of the nomination, because they were not topical controversies, White turned out to vote for the Court’s conservative wing.
Problem is, unforseeable issues are, tautologically, unforseeable. Imagine it’s 1962, and you’re looking at appointing a justice of the Supreme Court–what kind of track record is there for any candidate that would enable you to predict how he would vote 11 years later on Roe v Wade? Did anyone in ’62 even imagine that the Supreme Court would be called upon to decide a case like Roe v Wade in 11 years?
Anyone appointed to the Court is neccesarily going to be something of a blank slate, and unpredictable.
True, but people who are clear liberals are likely to evolve in ways consistent with most liberals. WIlliam Douglas didn’t have a documented record on civil rights per se, but it’s not exactly shocking that he would turn out to be a strong supporter.
But by the standards of ’62, Byron Whtie was a clear liberal. Heck, by the standards in place when Jerry Ford was president, John Paul Stevens was a mainstream Republican.
Scott,
So, let’s grant that the current political situation wrt confirmation is more favorable than it is likely to be next year, is there any reason to believe that it is, in fact, substantially favorable now? All the Republicans have to do is delay thing until after the election to shift to their likely preferred scenario. And it’s clear that they would be fine doing exactly that.
Given that given a pretext of provocation, the noise machine will gin up a firestorm, derail legislative matters, and perhaps stimulate the republican base, do you think keeping the nomination process quiet is a reasonable move to improve the midterm election prospects?
(I can imagine a strategy to fire up the leftist base with a strongly liberal candidate, but that’s obviously got its own set of risks.)
It still might be a mistake, and it might be that Kagan is exactly who Obama wants in any case, but I’m less convinced that a stealth candidate strategy is nuts in this congress.
[...] Kagan and Moving the Goalposts I largely agree with Scott Lemieux on the overall wisdom of the Kagan pick. My one point of hesitation is that in a lot of ways Kagan [...]