Today Barack Obama announced that his nominee to replace John Paul Stevens on the Supreme Court will be Elena Kagan, current Solicitor General, former Dean of Harvard Law. After much debate and speculation in the press and online, the decision isn’t really a surprise. It is, however, a major disappointment.
A Supreme Court vacancy is always a huge opportunity, and my personal hopes for Obama’s choice when this one arose could be summed up in just three words: please be bold. I had hoped that with (as it were) strategist David Axelrod whispering in one ear (recently fairly outspoken about the pointlessness of seeking cooperation from the right) and chief of staff Rahm Emanuel whispering in the other (advocating triangulation and expediency, valuing power over principle as ever), for a change Obama might recapture the spirit that animated his campaign and decide that, if the GOP is determined to give him a fight, he’ll make it one with stakes worth winning.
But once again, he didn’t.
Let’s make one thing clear from the outset: the fact that Stevens has been the “most liberal” justice on the USSC in recent years doesn’t mean he is actually a liberal in any ideological sense. He is, in most ways, the same careful moderate he was when Gerald Ford appointed him 35 years ago. As he himself has noted, the problem is that the rest of the Court has moved steadily to the right in the interim. We currently have the most reactionary Supreme Court in 75 years. Even as its right-wing fans rail against “judicial activism,” this court is in fact unapologetically activist in its systematic attempts to roll back almost every bit of judicial progress made in the 20th century… as most recently exemplified by the staggeringly wrong and deservedly unpopular Citizens United decision granting expansive “free speech” protection to corporate dollars in political campaigns.
Therefore, replacing Stevens can be at best a holding action… an attempt to stop the Court from shifting yet further to the right. With Kagan’s nomination, even that modest goal has apparently been sacrificed.
As the New York Times observes, this is a classic example of triangulation—first framing the message by leaking the names of three “short list” candidates, then choosing the one in the “middle.” And if such a strategy had been used to put forward someone genuinely progressive, a Pamela Karlan or Harold Koh or Erwin Chemerinksy, or even actual short-lister Diane Wood, it could have served a meaningful purpose. Any of those (among others) would be a nominee the grass roots could get behind with full-throated support. Instead, predictably, the strategy has been used to stick us with Kagan, whose main distinguishing characteristic is her lack of distinguishing characteristics.
She has repeatedly been described as a “blank slate,” and this is essentially true. She’s spent her professional life in career-building positions (as a law clerk, a Clinton administration functionary, a professor and a dean) in which the views she had to express were too often not her own, but those of her boss or her institution. She has never served as a judge, and until becoming Solicitor General had never appeared in court. Her publications have been embarrassingly scant. From the White House point of view, all this may seem to be a strategic advantage: the lack of a “paper trail” or any apparent ideology could make her easier to get past the Senate confirmation process. From outside the Beltway, however, all of this screams “cautious careerist”—someone driven more by self-interest than by deeply held principles. By contrast, Karlan recently said, “Would I like to be on the Supreme Court? …You bet I would. But not enough to have trimmed my sails for half a lifetime.”
The thing is, there’s no reason for Obama to have chosen the path of least resistance here. (Certainly the other side never did so: when Bush chose nominees, he seized the opportunity to seat dedicated Federalist Society ideologues like John Roberts and Sam Alito, and trusted that they’d get past any Judiciary Committee opposition with a modicum of groveling and dissembling—as indeed they did. He took this same approach with nominees to lower federal courts.) In contrast with the way Dems played along with the process for Bush, today’s GOP has openly signaled that it’s ready to oppose any nominee—consistent with its all-stonewalling-all-the-time approach to every Obama initiative. This is hardly a surprise; the opposition has gone out of its way to bottle up his lower court nominees, as well, no matter how qualified, no matter how urgent the vacancies. (Republicans have even intimated threats of a filibuster, despite their blatant hypocrisy on the tactic.)
Two of the most vital issues facing today’s judiciary are concentration of executive branch power (an area in which Bush/Cheney set countless noxious precedents that Obama has been distressingly reluctant to repudiate) and concentration of corporate power (as exemplified by the abovementioned Citizens United case, not to mention the ceaseless corporate lobbying around health care reform, Wall Street reform, energy and climate policy, and every other major issue worth mentioning), both of which pose real threats to the civil liberties of ordinary Americans and the ongoing credibility of our entire system of government. The alternative nominees I just mentioned, among many others, have records that demonstrate their readiness to take a stand on these issues. Kagan does not.
The indefatigable Glenn Greenwald has written extensively about Kagan’s shortcomings and their potential consequences. Her silence over the past decade in the face of Bush/Cheney’s rampant abuses of power, even as many of her colleagues in the legal academy spoke out, is far from encouraging… and what sparse documentary evidence exists (e.g., a 2001 law review article [.pdf]) suggests that she is in fact inclined to be excessively deferential to executive power. During the confirmation hearings for Solicitor General last year, Kagan agreed with Republican Lindsey Graham that the entire world can be treated as a “battlefield” in the “war on terror”… a position that invites all sorts of unconscionable abuses. Nor is she necessarily progressive on civil liberties or other domestic issues, according to many who have worked with her. One of the few other things we definitely know is that during those same SG hearings, she specifically disclaimed any belief in a Constitutionally derived right to same-sex marriage.
Even her defenders seem to offer transparently weak arguments. James Doty argues that her career history, including clerking for figures like Abner Mikva and Thurgood Marshall, suggests that she “would fit comfortably on the left-hand side of the judicial spectrum”… but acknowledges that (emph. mine):
The evidence we have from Kagan’s life and works might not be abundant, but on the whole, it shows her to be a conventional Democrat who is comfortable with at least certain progressive uses of judicial power. It’s also true that Kagan’s writings are often frustratingly and excessively circumspect, a trait that was probably aggravated by Clinton’s failed attempts to place her on the federal bench in 1999. The charge that Kagan has failed to clearly espouse a progressive approach to constitutional interpretation is a fair one, but that’s a much different accusation than the claim that she’s a blank slate. It’s one thing to lack progressive ideals; it’s another thing to mute them in the service of ambition.
That’s hardly a ringing endorsement, or grounds for one.
Harvard’s Lawrence Lessig, for his part, explains that she’s an old friend and colleague and maintains “the Kagan I know is a progressive.” He concedes that “I hope it is obvious that I wouldn’t say someone should believe this about her merely because I say it,” but asks his readers to do essentially that, offering precious little evidence from Kagan’s own words or actions. What he says may be true, but if so, she’s kept her convictions well hidden.
Meanwhile, while liberals hedge and equivocate, numerous conservatives are singing her praises. Of course, from Rahm’s distorted POV, this and the criticism from “the left” probably just make her a better candidate. The White House seems to have bought into the conventional wisdom that, as Marc Ambinder puts it, “all judicial battles are fought on the right’s terrain.”
But that perspective is all about getting her confirmed without a fight (even a worthwhile and winnable one)—it’s not about how she’ll perform on the bench. Even the argument that she can “work with conservatives” to “build consensus” among her fellow justices and sway votes on key decisions, a defense offered by the White House and echoed by Lessig among others, is far from convincing. This is a skill for which Stevens was often noted… but the main evidence adduced to show that Kagan possesses it is the fact that she hired and worked with conservative scholars while running the show at Harvard. Extrapolations from this record are exceedingly dubious, especially when you consider the details: out of 32 faculty hires during her tenure at Harvard, 31 were white (one was Asian-American), and 25 were men. That’s not so much “consensus building” as it is casting aside any concern for diversity and letting the proverbial old boys’ network take over the show, and it’s caused at least one of Kagan’s initial defenders to rethink her position. Moreover, Kagan’s barely competent argument before her future colleagues in Citizens United, which apparently alienated several justices including (crucially) Anthony Kennedy, certainly doesn’t hint at this kind of persuasive skill. (Wood, meanwhile, has an actual history of winning over her fellow judges on the 7th Circuit.)
Is Kagan an intelligent, competent attorney, “qualified” to be a Justice in the narrowest sense of the term? Certainly. But that’s a far cry from saying she’s the best available choice for the position, or even an acceptable one. This Court seat has been a liberal bulwark for nearly a century; before Stevens, it was held by Louis Brandeis and William O. Douglas. Kagan simply isn’t in that class. This is just one more disappointment from an administration that’s already served up far too many of them.
I was under no illusions when I campaigned and voted for Obama that he was a fire-breathing left-wing activist (much less the “socialist” of teabaggers’ fevered delusions); I understood that he was a pragmatist who picked fights he saw as winnable. But I had hoped he’d put that pragmatism to work on behalf of the progressive principles expressed in his rhetoric: taking on entrenched interests, speaking truth to power, showing how government can achieve positive change. Instead, far from serving those ideals, he seems to have become a servant of the status quo. We got Wall Street insiders as top economic advisors, we got a watered-down stimulus plan, we got a public option for health coverage bargained away, we got escalation in Afghanistan. We’re getting all-but-toothless reform of the finance sector, we’re getting pathetically weak climate policy with bones thrown to the coal and oil industries but (market-driven!) cap-and-trade set aside as somehow too “radical.” And now, after biting our tongues on last year’s Sotomayor nomination, we’re getting another Supreme Court nominee who promises nothing in terms of restoring balance to the judiciary. Even at this most propitious possible moment, with the momentum of health care reform’s passage behind Obama, with the biggest Senate majority he’s ever likely to enjoy, with the empty seat being the most liberal one on the Court… there’s no boldness in sight. This was a defining moment for Obama, and he blew it.
At this point one really has to wonder what the White House thinks will motivate disillusioned progressives to come out and vote for Dems in November, or for Obama in 2012. If even under these circumstances, the Court still moves further to the right, when can we ever expect it to reverse trajectory? What are we being asked to vote for?
Kagan will almost certainly be confirmed. Short of rousing enough opposition to pull a Harriet Myers on the administration—but while activists on the right are capable of this, the left always seems happy to settle for half a loaf—the most we can hope for at this point (and urge from our Senators!) is that the Judiciary Committee at least pin her down on her positions regarding a few key areas of legal doctrine, including the vital civil liberties issue mentioned above concerning governmental separation of powers and corporate influence. Kagan herself once decried the kabuki of the modern confirmation process and insisted that high court nominees should be obliged to reveal such positions, and we should hold her to it. Beyond that, progressives (and indeed, all Americans) are being asked to accept Kagan on faith, and we’re left with nothing left to do but wonder, and wait and see. We deserve better.Tags: Elena Kagan, Glenn Greenwald, John Paul Stevens, judiciary, Obama, progressives, Rahm Emanuel, Senate, Supreme Court