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Apparently, Elena Kagan will be nominated for the Supreme Court.   I will go into more detail about this later, but there shouldn’t be any sugarcoating — it’s a poor choice.    One way of seeing this is to examine Marty Peretz’s attempted defense.   Boil off the usual add homienems and you’re left with no actual real credentials for the position attributed to Kagan.   He doesn’t try to argue that Kagan — who has no judicial experience, very limited political experience, and no record of influential scholarship — is a better choice than Diane Wood or Sidney Thomas, because the proposition is pretty much indefensible.   When you’re reduced to noting that a prospective nominee for the highest court in the land is a “brilliant conversationalist” and that other Harvardites think she’s good people. one has pretty much conceded that the pick is Ivy League nepotism of the worst sort.      An the idea that the complete absence of evidence about her constitutional vision is no big deal is something that’s easy for someone who will never be denied an abortion, be discriminated against by an employer, etc. to say, but for people who actually take such things seriously it’s rather important.

As the conservative reaction to Harriet Miers indicates, they do take their constitutional values seriously.  I suspect we’re about to find out that far too many liberals don’t.    And if the Senate that is likely to have many more Republicans after the 2010 midterms rejects or filibusters Obama’s next nominee, this will rank as a blunder on a par with Reagan’s failure to nominate Robert Bork while the GOP still controlled the Senate.     You don’t waste a pick on a blank-slate centrist when your position in the Senate is about to get dramatically weaker.

UPDATE: I should emphasize, in response to an issue raised in comments, that I’m not directly comparing the credentials of Kagan and Miers; obviously the former’s, while much weaker than the other candidates on the shortlist, are superior to those of Miers. Rather, I’m simply noting that many Republicans insisted on a nominee with a clear commitment to conservative constitutional principles, and torpedoed the Miers nomination. Obviously, that’s not going to happen here.

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  • A couple of things.

    1. Kagan is young. It’s absurd that that’s a relevant factor, but it is. Diane Wood is a fine judge, but she’s too old to be nominated to the Supreme Court. Again, it’s absurd that that’s even relevant, but such is the infinite wisdom of the founders. The fact that basically none of the criticism of Kagan has addressed this point (that I’ve seen anyway) leaves me somewhat suspect.

    2. That’s a pretty odd view of the Miers debacle. The much more relevant point was that Miers hadn’t demonstrated the proper fealty to the Federalist Society and other organs of the conservative movement, and was rather transparently being nominated principally because of her personal relationship with and loyalty to Bush. You can argue over the Kagan selection all you want, but she certainly has relevant qualifications beyond the fact that she’s had the Presidents back, and any comparisons to Miers remain downright offensive.

    • Amanda in the South Bay

      I agree age is most certainly a relevant factor, but if you want a young nominee, why not Karlan? She has all of Kagan’s strengths and none of her weaknesses-she’s practically the same age, has a stellar academic record, and actually has a paper trail. Plus the fact that she teaches at Stanford can bring a little geographic diversity to the court.

      And of course you’d get the highest out LGBT individual in American history as well.

      • Red Jenny

        And of course you’d get the highest out LGBT individual in American history as well.

        You’ve sunk her battleship. After HCR Obama is going to be running to the right for the next three years. As a 28yo with a preexisting condition, that’s a price I’m happy to pay for HCR, but it’s going to be murder on the rest of the progressive agenda.

        • Amanda in the South Bay

          I thought the pre-HCR left wing CW was that after HCR was passed, Obama would be free to go after a more progressive agenda (like DADT and ENDA and presumably more liberal SCOTUS picks). After all, HCR was supposed to be *the* defining moment for his administration, so who cares about Republicans and Blue Dogs after that?

          • Scott Lemieux

            The argument about age would be more compelling if there was good evidence that she would be a reliable liberal vote. If she turns out to be another Byron White — which is entirely possible — the prospect of decades on the Court is rather less exciting.

  • Oh for Christ’s sake, Scott … Kagan’s rumored to be lesbian and Obama wants a gay rights quota queen on the Court to strike down Prop 8 and DOMA when they get there on appeal. What is that you teach again, hot shot? See, ‘Obama to Nominate Elena Kagan: First Lesbian on the Court?’.

  • Amanda in the South Bay

    Kudos to everything you said, and I agree 110%.

    Its just that I am so not looking forward to the internecine blowup that is going to happen come tomorrow on the left. I don’t like being looked upon as some sort of Firebagger crazzed dirty hippie who thinks Obama is worse than Bush, or maybe a Hamsher wannabe, etc (Memo to self: don’t read Balloon Juice for a while).

    In a bigger sense I also agree that Obama should’ve more aggressively frontloaded his agenda before the midterms. The Dems are only going to get (if only marginally) weaker after 2010, and make it harder to get anything remotely progressive through Congress.

    • Incontinentia Buttocks

      The problem won’t be the existence of the “internecine blowup.” The problem will be that it will be small and ineffectual.

      Stop worrying about looking like a “Firebagger.” Start wondering why we don’t have the strength that the folks who killed the Miers nomination from the right had.

      Everyone was blindsided by the Miers pick. We weren’t blindsided by this. We had weeks to try to stave it off. We failed. Being called DFHs is the least of our problems.

      Progressives need to develop some independent power so that we can push centrist Democratic presidents to do the right thing even when they don’t want to. Having a few Senators willing to stand up to someone like Obama from the left would be a big help.

      Also: Remember this the next time someone insists that you have to vote for a centrist presidential candidate ’cause of the Supreme Court. This is not the change we need.

      • MikeJ

        You honestly believe that if McCain were making his second USSC nom they would be no worse? If so, you’re delusional.

        • Incontinentia Buttocks

          Don’t put words in my mouth, MikeJ. Of course a McCain nominee would have been worse.

          What I’m saying is merely electing a Democratic President and a Democratic Senate is not good enough.

          I voted for Obama in November 2008 because he was the lesser evil. I remain convinced that that was the right vote….and that that was the only good reason to vote for him.

          What I’m saying is that progressives need to focus like a laser on making our choices better in the future. Keeping the GOP out of power is simply insufficient.

          • The problem is that we didn’t “elect a Democratic Senate” in the sense that there’s a coherent ideology to the caucus: Senators affiliated with the Democratic Party, many of whom are only nominally Democrats by tradition, hold a majority, but only a third of them were newly elected and many of those were borderline moderates who were competitive only because of their near-Republican-ness and big coattails.

          • I’m not so sure that HRC would have made better picks, but in a sense that’s begging the question. I agree that the liberal/progressive wing of the Democratic Party lacks the clout I wish it had, and it is frustrating to keep settling for half a loaf, particularly on things like judicial nominations. Perhaps what we should be doing is agitating for Obama and the Senate to move more aggressively on district and circuit court nominations.

            • Incontinentia Buttocks

              I’m sure HRC would have picked very similar justices.

              The problem was that progressives merrily supported these two centrists in the primaries.

              We need viable progressive presidential candidates (and, no, I’m not talking Kucinich, who clearly isn’t).

              We have six years before the next open Democratic presidential primary. The time to start looking and recruiting is now.

              • Well, there was John Edwards. That would have worked out well. I liked Mike Gravel, but I’d like a pony for my birthday too. We agree on Kucinich, so who did that leave? Bill Richardson? Touched by scandal, since resolved. Would have had a tougher race against McCain, too I think. Chris Dodd? Let’s not even kid. Evan “Walk On” Bayh? Actually a worse choice than any of the above. That leaves Joe Biden and Tom Vilsack.

                We knew what we were getting with Obama, and on balance what we got was substantially better than any of the alternatives. It seems to me that a big problem that we as liberals have with him is that he is not the left wing equivalent of the guy he replaced, and instead is endeavoring to govern rationally. It is unfortunate that this means that none of us are getting ponies for our birthdays, but we should know better than to trust pony promises. Bush was good at those, and all we got was a room full of horseshit.

  • Ed Marshall

    I don’t know enough about Kagan (other than she rates a defense from various odious people who if they said anything nice about *me* would make me immediately question my own self worth) to make a judgement on if I would like or dislike her jurisprudence.

    What does put me off is the “judicial experience” canard. Serving on an appellate court doesn’t really show anything relevant to serving as a Supreme Court Justice other than you can play politics in a small workgroup. The role of an appellate court judge is simply different than that of a Supreme Court Justice, and the history of demanding judicial experience has nothing to do with it actually being necessary.

    It was political rhetoric from the executive to avoid the failure of a nomination. It started because if you nominate an appellate court judge they had already been confirmed by the Senate once, so you had a paper record you could throw back in peoples faces and say “well, you voted for her/him before, what is your problem now” and now it seems like people are taking this stuff seriously.

    • Scott Lemieux

      To clarify, it’s not so much that I regard appellate judicial experience as crucial per se, as that this experience provides useful information about what the candidate believes.

  • Ed Marshall

    and frankly, maybe her ability to garner praise from nasty people is probably exactly what you want in a Justice.

    At the end of the day, it’s a political job and the value of adding a solid liberal is attractive in a zero-sum way, but it isn’t a zero-sum job. There is horse trading that happens as unseemly as it is. Do you get more out of a solid liberal vote who will write a pretty dissent in 8-1 cases or someone who can play ball with conservatives?

    • I think this effect is trivial in any case, but with respect to Wood we have actual examples of her getting conservative judges to change their minds about things. Is there any such evidence about Kagan? The fact that conservatives like her personally is essentially irrelevant — Scalia and Ginsburg are good friends.

      • Ed Marshall

        I didn’t know that about Wood. I did know that about Ginsburg and Scalia and I think the relationship there isn’t so trivial. Not so much in highly partisan matters but I think it helps around the edges.

        • Ed Marshall

          After some research, Wood would (god, that sounds funny) have been a better pick. She would have sailed through, and there isn’t any good reason not to pick her.

          • Incontinentia Buttocks

            What do you consider a “good reason”?

            There’s a lot of evidence that Obama’s constitutional vision is significantly to the right not only of progressives but of old-time moderate Republicans like Stevens.

            What’s missing from this picture is any additional cost to nominating someone like Kagan.

            Had Obama known that he would be fighting a two-front war in the Senate over Kagan, then Wood would have been a more attractive nominee to him.

  • Scenario: Conservatives oppose Kagan aggressively (’cause that’s what they do). Without a strong constituency to defend her, Kagan does not get confirmed. Then Obama nominates someone that Democrats (if not “liberals”) can get excited about.

    I don’t seriously think this will happen, but I guess it’s my way of saying I wouldn’t mind if she did get stymied by conservatives somehow.

    • Ed Marshall

      Obama is a first term president, he controls the Senate, the seat in question isn’t critical, the nominee isn’t a member of his cabinet.

      The nominee gets confirmed, bet the bank.

      • Incontinentia Buttocks

        You’re absolutely right about this.

        Killing this nomination would take an active involvement from the “left.” Think Harriet Miers. And that’s not going to happen either.

        • See, the definition of “scenario” is that it’s not a prediction, it’s just a possibility. Unlike you guys, I don’t pretend to know the future. We’ll see what happens.

          The more I read Scott shrill out, the more I think he’s overreacting (“can’t be defended”). Kagan is not a pick that “can’t be defended,” that’s silliness. She’s a pick that liberals can reasonably be disappointed in. SCOTUS nominations aren’t a multiple-choice test; it’s an essay question. There are multiple ways to get the right answer. Scott should read Yglesias’s post again with a more charitable eye: the Roberts analogy is probably better than Miers. Part of Scott’s game here is to exaggerate the importance of what are small and unknowable differences. The difference between Kagan and Wood probably isn’t that big a deal.

  • rea

    I’ll be surprised if there isn’t unanimous Republican opposition to whoever Obama nominates–they don’t think Democratic presidents are entitled to nominate judges.

  • LS

    While I agree with many of the criticisms discussed here, the idea that Obama (a former Con Law prof) hasn’t had a very thorough discussion with his top nominees on their attitudes toward Constitutional interpretation, the nature of judicial review, and so on is frankly absurd.

    • Incontinentia Buttocks

      Who’s saying that Obama hasn’t thoroughly vetted her?

      My opposition to Kagan is, in part, based on my suspicion of Obama’s constitutional vision.

      A nominee with virtually no relevant public record put forward by a President who believes that the executive can order the unreviewable assassinations of U.S. citizens, torture at will, “preventably” hold suspects with out trial, etc. doesn’t get a free pass from me because that President says “trust me on this.”

      And before anyone says I’m saying otherwise: McCain would have been even worse. Which is why I’d vote for the kinder and gentler authoritarian again.

      It’s still a disaster.

      • ACS

        You’re direly misrepresenting Obama’s positions on these issues. Not that you care.

        • Rob

          You’re right, Obama is against torture at will. But he supports the rest and now is leaning towards military tribunals and not Mirandizing terror suspects. Not that you care.

        • DocAmazing

          Really? So the President has closed Gitmo, issued a presidnetial order banning assassinations, brought the Bush Administration torturers to justice, and told Eric Holder to knock it off about curtailing Miranda rights? I must have missed all of that stuff.

          See, I’m wholly uninterested in the things Obama says. I’m a lot more interested in what he does. By that standard, Ms. Buttocks is right on the money.

    • Bobby Thomson

      Is that supposed to cheer us up?

      Obama has been a mixed bag, but one area where he was supposed to shine and has completely screwed the pooch is on issues of constitutional law and civil liberties.

      Oh, I’m pretty sure he knows what her jurisprudence would be. That’s what bothers me.

  • mark f

    I think less convincing than Marty Peretz’s reasons for supporting Kagan are Paul Mirengoff’s reasons for opposing her, which amount to “I don’t know anything about Kagan but Harvard was mean to Larry Summers and that racist e-mail girl.”

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  • mds

    Okay, no sign of the original submission that led to a 500 server error. Of course, I’m sure I’ll end up double posting somehow. Onward!

    You don’t waste a pick on a blank-slate centrist when your position in the Senate is about to get dramatically weaker.

    What if a blank-slate centrist loyalist is exactly what is wanted? Remember, indefinite detention is still on the table, and “modified Miranda” is being bandied about by the AG; do you think Judge Wood would be likely to accede to such horseshit? The President would want a good little soldier on executive power. And maybe I’m reading the tea leaves wrong, and Ms. Kagan will turn out to be a liberal lion that will someday make progressives say, “John Paul Who?” But I’m getting tired of always presuming eleven-dimensional chess, when it usually turns out that William of Ockham was right.

    Anyway, it sure will be exciting to see who gets picked to replace Justice Ginsburg, since as you say the Senate is going to become even more hostile in January. Merrick Garland if we’re lucky.

    • Incontinentia Buttocks


      The problem isn’t that Obama fears that he can’t get what he really wants. The problem is that he knows he can.

  • DrDick

    This is getting to be a pattern. Obama has pretty much wasted every opportunity he has had to move the policy agenda and ultimately wound up moving significantly to the right. I am currently trying to decide whether he is simply incompetent or if he really is significantly further to the right than most of us think.

    • The same could be said of Clinton, but that’s not much of a defense. Although I do not believe that the country is as right-leaning as the right wing of the Republican Party (which is, I guess, the Republican Party, more or less) would have us believe, there is no question that the right wing of the Republican party is better at what it does than the left wing of the Democrats has been for two generations.

      • DrDick

        True, though in Clinton’s case he (and she) really are marginally to the right of center. Obama campaigned as somehwat further left (though still decidedly “centrist”). You are absolutely correct about the messaging issue, which is ironic since 30 years of polling data indicate that the vast majority of the American public are more in tune with the progressive wing of the Democratic Party on policy issues.

        • Rob

          Obama campaigned to the right of both Clintons.

          • DocAmazing

            And Mr. Clinton governed to the right of Richard Nixon.

  • Incontinentia Buttocks

    For a truly silly response to these issues, Stuart Taylor and Jeff Rosen are on NPR “analyzing” the Kagan pick.

    Stupidest take so far comes from Rosen: Chief Justice Roberts told us in his confirmation hearing that he really hoped to bring the Court’s left and right together. So far he’s unfortunately failed to achieve this noble goal. Kagan probably wants the same thing. Perhaps she’ll succeed. And the hostility with which Roberts has treated her testimony as Solicitor General is a sign that either a) he feels threatened because maybe she will be the one to achieve his dream; or b) he’s just sparring with someone he recognizes as an intellectual equal.

    I didn’t have the stomach to listen to what Taylor had to say.

    • Scott Lemieux

      Christ. And no matter how silly the analysis is, you can always count on Stuart Taylor making things worse…

    • Amanda in the South Bay

      This is soooo inside baseball, but doesn’t Rosen have some sort of family connection to the Solicitor General’s office, or something like that?

      Damn, Washington (regardless of party) is so incestuous.

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