Monday, May 10, 2010

Supremes: How 'Bout That Elena Kagan?

OK, so President Obama did the obvious...

President Obama nominated Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

So it's Elena Kagan. Most everyone in Legalworld was expecting this. But why? And why did Obama pick her?

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Or is it? Is Obama actually threatening to move the court even further to the right? That's what Glenn Greenwald is worrying about.

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her).

Or should he be worrying? James Doty says we don't have to in his op-ed in Salon today.

Kagan’s (admittedly scant) writings on the subject suggest that she might instead embrace Marshall’s view that the Constitution should be interpreted expansively to provide rigorous protections for the dispossessed. In eulogizing her former boss in a 1993 law review article, Kagan observed that Marshall’s pragmatic jurisprudential approach considered not just the law as written, but “the way in which law acted on people’s lives.” As Kagan noted, this approach demanded “special solicitude for the despised and disadvantaged.” Kagan lauded this view of the judicial role, saying that “however much some recent justices have sniped” at Marshall’s vision, it remained “a thing of glory.” In the article’s closing, Kagan nodded to the progressive view that the Constitution grows and adapts to meet the needs of a changing society, giving Marshall “credit” for our “modern Constitution.”

Even if Kagan’s judicial beliefs don’t align with Marshall’s in all particulars, her willingness to praise his general judicial principles suggests that she, like Marshall, sees the Constitution as a dynamic bulwark against majoritarian tyranny and political persecution. This contrasts not only with the beliefs of Marshall’s antagonists like Scalia, who view the Constitution as static and unchanging, but even with Justice Sonia Sotomayor, who stated blandly at her confirmation hearing that her only interpretive guidepost was “fidelity to the law.”

And of course, there are the standard lesbian rumors. So what the dealio here?

For now, let's put the gossip, all the gossip, aside and discuss what's actually happening. The President is choosing someone who may not have any judicial experience, has a long record in the legal world. She was the Dean of Harvard Law School. She was a research assistant for famed progressive legal wiz Larry Tribe, then clerked for Supreme Court Justice Thurgood Marshall. So far, so good.

So last year, she became Solicitor General. She defended Obama's newfound embrace of broad executive powers. Uh oh? Perhaps not, since the Solicitor General's job is to defend the President in court. At this point, we don't really know yet if Kagan herself supports broad Presidential powers over strong checks and balances.

And that's just it. We don't know everything yet. So for now, I'd say take a breather and let's see how Elena Kagan handles herself in the Senate confirmation process. Let's learn some more about her before we declare her the best thing since La Brea Bakery's bread, or conversely a "Republican in disguise!" or "Democratic Harriet Miers!".

Let's be open about it and give Kagan a chance. After all, Jeralyn at Talk Left is right that we dodged a bullet with Merrick Garland. Considering Obama isn't a progressive firebrand, it may not be too wise to expect him to drop Kagan for someone more to the left.

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