Home / General / Summing Up What’s Wrong (And What’s Not Wrong) With The Kagan Pick

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.

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