I have a review of Jeffrey Toobin’s new book up at the Prospect. To me, the most telling of the many telling details involves the circumstances of Obama’s decision to pick Kagan over Diane Wood:
This fight between political aims and the Constitution has not been fought on symmetrical ground. As The Oath makes clear, Republican presidents have made reshaping the federal courts a high priority since Ronald Reagan’s first term. Presidents Clinton and Obama, conversely, have not. This difference in priorities can be seen in the sluggish pace at which Obama gets federal judges confirmed, a result of Republican obstructionism and a slow speed of nominations on the part of the Obama administration. As Toobin notes, another telling example can be found in comparing the second nominations of Obama and George W. Bush. Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court. Obama, conversely, passed up an opportunity to use an atypically large Democratic majority in the Senate to get something approaching a liberal equivalent of Alito confirmed, going with the safe choice of Elana Kagan. In a telling detail, Toobin reports that Kagan was chosen over Judge Diane Wood in part because as Solicitor General Kagan fought for a legal position on the repeal of Don’t Ask Don’t Tell that was to the right of the one ultimately chosen by President Obama. The kind of heterodoxy that would torpedo a nomination in a Republican administration can work to your advantage with a Democratic administration.
As I say, the skepticism about the courts Obama learned from Chicago liberals is in a sense well-founded; the courts do have less ability to produce social change than some progressives assume, and historically have been much more reactionary than is commonly assumed. But the problem is that 1)courts do a great deal to damage progressive victories, and 2)the current partisan asymmetry makes things worse than they have to be. Obviously, Obama isn’t going to need reminding about point #1 anytime soon…
…UPDATE: To answer rea’s question, Kagan argued that the
district court 9th Circuit ruling that DADT was unconstitutional was wrong and the Obama administration should appeal it.