Obama picks Elena Kagan for Supreme Court
Kari Chisholm
This morning, President Barack Obama selected his second Supreme Court justice. The choice? His solicitor general, Elena Kagan. Before joining the Obama Administration, she was dean of Harvard Law. She was the first woman to serve in both of those roles.
Previously, she'd been a clerk for Justice Thurgood Marshall, a deputy White House counsel in the Clinton administration, and a professor at the University of Chicago Law School -- where her colleagues included this future president.
Another of those colleagues at Chicago was Lawrence Lessig, whom she recruited to join her at Harvard two years ago - and who spoke at the Bus Project conference this spring in Bend.
Over at the Huffington Post, Lessig makes the case for Kagan - arguing that she's uniquely suited to turning the four-vote progressive minority on the court into a five-vote operational majority:
Her most important work over the past two decades has been in contexts where she has had to move people to see things as she did. And through that experience, she has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean "compromise." It means finding a way to move others to the answer you believe is right. ...
[T]he core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side.
I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it.
And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it. ...
The bottom line calculus for me in this case could not be clearer. Obama's second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It's not enough to appoint someone who will cast the right vote. We need someone who will make majorities.
Discuss.
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10:58 a.m.
May 10, '10
I think social conservatives will oppose her due to her support of gay marriage. She may also face some stiff opposition because she lacks direct judicial experience. Of course, William Rehnquist was the last Supreme Court Justice to win nomination without prior experience, so it may not matter that much.
My initial reaction is that she'll be confirmed.
11:47 a.m.
May 10, '10
And if she was opposed to gay marriage, social conservatives would find some other excuse to oppose her.
There's no point in negotiating with a brick wall.
11:31 a.m.
May 10, '10
We know already that the GOP will pushes to delay this confirmation out as long as possible, and they are hoping it will push past the August recess, so it can be politicized for the November mid-terms. TPM has and article (and exclusive audio) of them laying this out.
In the end though, they acknowledge that they can at most only delay the confirmation, but that she will be confirmed in the end. So expect every made-up "controversy" to be leveraged by the party of no, but keep in mind that delay for purely electoral political purposes is their real goal since they acknowledge they have no legitimate basis (or power) to deny a conformation.
11:50 a.m.
May 10, '10
Disappointing.
I was born after the appointment of Thurgood Marshall but before Burger and Blackmun.
I'm thankful that the Warren Court at that time was as skewed about as far to the left as you can get, because EVERY SINGLE Supreme court appointment since I was born, over 40 years ago has been the replacement of one justice with a more conservative justice.
The only exception to that was Ginsburg replacing White(which did not quite compensate for the enormous Marshall-to-Thomas rightward leap immediately before). All others have ranged from a baby step to the right to a huge lurch to the right.
We could have done much better. This particular seat was once held by the northwest's own William O. Douglas, one of the greatest true liberals we've ever had.
12:06 p.m.
May 10, '10
Why are you disappointed?
As a progressive I am not in any way disappointed.
1:11 p.m.
May 10, '10
It's considered poor form for a president to quiz a potential nominee about her views. But two junior faculty colleagues at the law school kibbitzing over beers? Totally cool. Obama knows a lot more about Kagan's views than what is reflected in her public record.
At some level, then, reactions to Kagan are a Rorschach test for people's views of Obama. Do you trust him to pick a judge, or not?
1:40 p.m.
May 10, '10
I agree.
Glenn Greenwald of Salon (one of the smartest progressives out there in my humble opinion) makes the case that Kagan was a poor choice. He basically argues that while Kagan may end up being a strong progressive, the fact is based on the little we know about her, we don’t know what kind of judge she will be. . He compared choosing Kagan to shooting craps. Replacing justice Stevens, the leader of the “liberal wing” of the court w/ Kagan will very possibly shift an already conservative court to the right. Greenwald made the case for judge Diane Wood, who has a clear progressive track record.
Here’s the link to Greenwald’s “The Case Against Elena Kagan.” http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan
Here’s his take on Diane Wood: http://www.salon.com/news/opinion/glenn_greenwald/2010/04/19/wood/index.html
I’m sure Lessig makes a good argument in support of Kagan, however he is a former colleague and friend of Kagan and Obama. It would be difficult for him to take a different position.
2:22 p.m.
May 10, '10
“Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting for Republicans,” Ms. Kagan wrote, in a kind of Democrat’s lament. She described the Manhattan of her childhood, where those who won office were “real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”
Yep. She sounds like a wishy-washy liberal. /snark
BTW, if you had actually read Lessig's piece instead of dismissing it out of hand because he actually knows and has worked with the person in question, you would see that she quite likely will be a more effective jurist to pull the court to the left than Wood might have been.
Kagan also strikes me as being much stronger on the left side of the spectrum with regards to issues like corporate personhood than other liberal names that had been floated. I would also highlight the President specifically citing it when introducing Kagan as his nominee today.
2:27 p.m.
May 10, '10
What has she published on corporate personhood, Mitch? Anything she's argued as SG is invalid; that's her job, not her opinion.
There's no evidence to suggest she'll pull the court left, what possible basis would there be? She's a cipher without not only judicial experience but any meaningful COURT experience. Miers was literally more experienced than she is for the job.
She sounds a lot like Obama, though--only feebly committed to progressive principle, and ready to jettison it when deemed politically helpful.
3:29 p.m.
May 10, '10
LOL, so now being solicitor general and actually arguing cases in front of the SCOTUS = no meaningful court experience.
2:48 p.m.
May 10, '10
We could give quotes back and forth to try to argue how liberal she is or isn't but that won't get us very far. The fact is that she doesn't have much of a paper trail which means nobody knows what kind of judge she will be. There were much safer choices who have demonstrated hardcore commitment to progressive principles.
And I did not dismiss Lessig's piece and knew that Wood was also a former colleague. I simply pointed out that as a friend and former colleague of both Kagen and Obama, that it would be hard for Lessig to take a different position. If Obama had picked Wood I'm sure Lessig would have been supportive of her as well. I am an admirer of his and heard him discuss Kagan in a radio interview. I have read, watched, and listened to plenty of pro-Kagen people thus far. I still go w/ someone like Wood w/ a clear record of progressive judging.
10:08 p.m.
May 10, '10
The fact is that she doesn't have much of a paper trail which means nobody knows what kind of judge she will be.
Except maybe some of those people who were BS'ing about constitutional law back when everybody 'round the table at the bar was a complete unknown.
Funny thing: One of those guys is the President of the United States now.
9:21 p.m.
May 11, '10
ok, so obama knows more about her than the general public. i, along w/ many others don't trust obama for good reason. his judgment hasn't been exactly stellar.
4:23 p.m.
May 10, '10
I read Lessig's piece. While it made me feel a little better, it didn't make me feel good. The fact that he knows Kagan weakens his analysis in my mind. Do you think if one of your good friends was nominated for federal office that you'd be the most impartial analyst of his or her potential to do good. I think this is a reckless pick by Obama. If she ends up being great, I think it just means Obama (and us) got lucky.
5:25 p.m.
May 10, '10
I certainly think that someone who was a good friend of Kagan might have insight into where her mind is at vis-é-vis left/right views on issues and on how she can communicate and argue a position.
I find it odd that if Kagan turns our to be more center than left, it will be proof of a bad pick. But if she turns into a great progressive jurist, then it is just the President "getting lucky".
Talk about a heads I win, tails you lose game you seem to run.
(shakes head)
9:07 a.m.
May 11, '10
You are exactly right that this is a heads I win, tails you lose scenario, but it is one created by Obama's recklessness. Any decision made in haste with little knowledge creates such a scenario. If a rash decision ends up being a good, one the maker of that decision is lucky. If it ends up biting the decisionmaker in the butt, he or she got what was deserved. You can keep shaking your head at me and I'll keep shaking my head at Obama.
12:45 p.m.
May 11, '10
Your argument presupposes that President Obama made this decision in a rash, uncritical way and doesn't know who he picked.
10:06 p.m.
May 10, '10
He basically argues that while Kagan may end up being a strong progressive, the fact is based on the little we know about her, we don’t know what kind of judge she will be.
Unless you assume that President Obama knows more about her than is on the public record.
11:42 p.m.
May 11, '10
why are you so afraid of people who don't happen to agree with every part of the liberal theology kari? Why are you so afraid of Cameron you would suspend her ability to state her opinion ...which is more liberal than you think... what part of our heritage can trace it's roots to silencing everyone who doesn't agree with you? and most importantly what good is a forum comprised only of people who agree? When small closed minded people like you do things like this in the name of liberalism I am embarrassed and ashamed to be a Democrat. I know this girl personally and she is anything but a troll and much much smarter than anyone on this board ever thought of being. She has a depth of life experiences everyone on this board could have benefitted from even if they didn't always agree with her. I don't always agree with her but it wasn't because she could not defend every single one of her positions 100 ways from Sunday. Your treatment of her was closed minded, Pathetic! and Cowardly! Shame on you!
10:11 p.m.
May 15, '10
I didn't block Cameron's access. She did.
You can only comment at BlueOregon if you have a Facebook account AND your privacy settings are set so that BlueOregon can see who you are.
10:14 p.m.
May 15, '10
Oh, and then she created a second Facebook account - which is against Facebook's (and our) terms of service.
2:23 p.m.
May 10, '10
I am really happy that Obama has nominated a woman and I am really impressed with Kagan's resume to say the least. I have serious problems with her relationship to someone as corrupt as Obama and her membership in Obama's large family of current and former Goldman Sachs employees. I love the fact she has no experience as a federal court judge. Due to her poltics she would obviously not be my choice but it would be only her politics that would elminate her on my ballot. If she isn't qualified to sit on the Supreme Court then no one is. You are correct in thinking Obama knows more about how she will rule on issues than any paper trail will tell us. Since her confirmation will happen regardless of what anyone on the right says or does provided it happens before november then I would like to see it happen quickly and painlessly so we can remain focused on creating private sector jobs and trying to dig out of this ditch we are in. BTW Miles don't forget that it was Gerald Ford who nominated Justice Stevens to the Court back in the 70's. The confirmation of Kagan won't change the makeup of the court except to give her and Chief Justice Roberts a chance to bicker with each other everyday maybe with that much contact he will be able to lead her into the light on some things.
9:06 p.m.
May 10, '10
Thought you may be interested in this this article.
http://www.huffingtonpost.com/sam-harris/bringing-the-vatican-to-j_b_571088.html
May "lead you into the light on some things."
4:12 p.m.
May 10, '10
Okay, I'll pour gas on the fire.
I liked the Sotomayor appointment and I like this one. Of course Obama is going to appoint liberal judges, but my sense is that replacing Souter and Stevens with Sotomayor and Kagan arguably makes the Supreme Court slightly more conservative than it was.
But then, given that Bill Clinton was going to appoint liberal judges, I thought Ginsburg and Breyer were probably the best Republicans could hope for as well.
Realistically, I think Kagan strengthens the center of the court and does have a good chance of helping to forge a centrist majority in a significant number of cases, even if she is basically liberal or "progressive" herself.
4:51 p.m.
May 10, '10
sigh I agree with you Jack. Sotomayor and Kagan will likely move the court farther to the right than Souter and Stevens would have kept it. As a centrist, you may like that, but as a leftist, its sad and a little maddening. I say maddening b/c conservatives get true believers (ala Federalist Society members Roberts and Alito) while we have to settle for pragmatic moderates. Grrr.
9:08 p.m.
May 11, '10
Exactly!
6:48 p.m.
May 10, '10
I am a conservative and not necessarily opposed to this pick. My only issue is her lack of experience as a judge. It shouldn't rule her out, but makes it harder to evaluate her.
Based on what I have pieced together, Obama could have gone much further to the Left with this pick. I don't expect him to nominate a Scalia or a Thomas, so this is reasonably good news given a liberal President.
I hope they do their due diligence while treating her fairly and with respect. Then an up or down vote.
Heck, Ted Olson and Ken Starr have both endorsed her in the past. Can't be too moonbat lefty crazy:)
10:26 p.m.
May 10, '10
So, you would have opposed William Rehnquist? He also had zero experience as a judge.
10:47 p.m.
May 10, '10
"not necessarily opposed" was my first line. Then went on to say that it shouldn't rule her out.
So yeah, I guess that means I would have opposed Rehnquist........
11:40 p.m.
May 11, '10
why are you so afraid of people who don't happen to agree with every part of the liberal theology kari? Why are you so afraid of Cameron you would suspend her ability to state her opinion ...which is more liberal than you think... what part of our heritage can trace it's roots to silencing everyone who doesn't agree with you? and most importantly what good is a forum comprised only of people who agree? When small closed minded people like you do things like this in the name of liberalism I am embarrassed and ashamed to be a Democrat. I know this girl personally and she is anything but a troll and much much smarter than anyone on this board ever thought of being. She has a depth of life experiences everyone on this board could have benefitted from even if they didn't always agree with her. I don't always agree with her but it wasn't because she could not defend every single one of her positions 100 ways from Sunday. Your treatment of her was closed minded, Pathetic! and Cowardly! Shame on you!
10:13 a.m.
May 11, '10
An interesting factoid: When Roberts and Alito replaced Rehnquist and O'Connor, we for the first time in history had a Supreme Court exclusively made up of former U. S. Court of Appeals judges.
That was solidified further with Sotomayor replaced Souter, since Souter's tenure on the U. S. Circuit Court was brief and most of his judicial experience was on the New Hampshire Supreme Court.
Historically, Rehnquist and Lewis Powell were only the most recent non-judges appointed to the bench. The list would also include William Douglas, Hugo Black, Robert Jackson, Felix Frankfurter, Louis Brandeis, John Harlan (senior) and many others all the way back to John Marshall.
The argument that Elena Kagan is unqualified because she has no judicial experience has no legs.
12:43 p.m.
May 11, '10
Yet that looks to be what the GOP leadership in D.C. are going to hang their hat on.
9:10 p.m.
May 11, '10
I think you will see her confirmed quickly and easily Mitchell
9:07 a.m.
May 11, '10
Norman Solomon thinks Kagan will shift the court to the right. This from his piece on CommonDreams:
"Kagan in Context: Shafting Progressive Values
If President Obama has his way, Elena Kagan will replace John Paul Stevens -- and the Supreme Court will move rightward. The nomination is very disturbing, especially because it's part of a pattern."
http://www.commondreams.org/view/2010/05/10-0
9:16 p.m.
May 11, '10
Great article ... I think Solomon is not only wise...but also correct.
10:54 a.m.
May 12, '10
Here's another piece by Jason Linkins of HuffPost reinforcing the notion that Kagan was a poor choice from, at least from a progressive perspective.
The piece focuses on the "persuasion" logic of the Kagan pick. He cites another journalist who seems to demonstrate that justice Kennedy rarely if ever has had his mind changed by another justice. He also points out that if this were the most important question, who will be more likely to persuade justice Kennedy (which it shouldn't be) that Diane Wood was a better choice in that respect as well.
http://www.huffingtonpost.com/2010/05/12/elena-kagan-and-the-persu_n_573299.html