The Case Against Kagan: The Need For Answers

I plan on being an advocate for the nomination of Elena Kagan to the Supreme Court. My friend and highly respected legal analyst Glenn Greenwald presents the case against her. One important point that I agree with that Glenn makes is:

[T]the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination.

I believe that the confirmation process can address this concern, so long as the approach I have long advocated - that nominees must be obliged to answer substantive questions on issues from the Senate - is adhered to. Failure to answer questions and provide information should be disqualifying. I argued for such a standard when John Roberts was nominated to be Chief Justice.

In any event, read Glenn's piece. It is quite good. I will be publishing a rebuttal in the next day or so.

Speaking for me only

< The Crisis Not Addressed | Tuesday Morning Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Like that's going to happen (5.00 / 1) (#1)
    by david mizner on Tue Apr 13, 2010 at 08:54:39 AM EST
    I believe that the confirmation process can address this concern, so long as the approach I have long advocated - that nominees must be obliged to answer substantive question on issues from the Senate - is adhered to.

    No need to worry, so long as they dramatically change the nominating process overnight.  

    Here is a chance for changing it (none / 0) (#2)
    by Big Tent Democrat on Tue Apr 13, 2010 at 08:58:58 AM EST
    Republicans will want answers and progressives should want them to.

    To coin a phrase, Strange Bedfellows.


    I'm skeptical (none / 0) (#3)
    by david mizner on Tue Apr 13, 2010 at 09:03:58 AM EST
    You're usually so hardheaded and realistic; that's one of the reasons I make a point of reading your stuff. It doesn't seem likely that a Democratic-controlled judicial committee would force an Obama nominee to get more specific than recent nominees.

    It may not be likely (none / 0) (#4)
    by Big Tent Democrat on Tue Apr 13, 2010 at 09:05:20 AM EST
    But it is possible.

    At the least, it is a chance to forward this issue.

    It has been one I have been fighting for for a number of years.


    In any case (none / 0) (#6)
    by david mizner on Tue Apr 13, 2010 at 09:12:47 AM EST
    Let's say your idea prevails and she gives answers that aren't to the liking of progressives, it'll be too late to stop her nomination, as Greenwald says:

    if Kagan is nominated, it's virtually certain that she will be confirmed.  There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?).  If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.

    It's too late now (5.00 / 3) (#10)
    by Big Tent Democrat on Tue Apr 13, 2010 at 09:23:29 AM EST
    If you want to be hard headed about it.

    As I learned during the judicial fights of 2005, how you conduct the current fight has an effect on the next one.


    She could get (none / 0) (#8)
    by lilburro on Tue Apr 13, 2010 at 09:18:50 AM EST
    asked the questions by Republicans or Democrats (although my guess is Dems would attack Republicans for asking such questions) and without a doubt Republicans would go wild, painting her as a Liberal Commie.  Then what?  Someone is going to have to articulate a liberal judicial philosophy.  

    Then we are doomed (none / 0) (#11)
    by Big Tent Democrat on Tue Apr 13, 2010 at 09:24:23 AM EST
    Presumably some Democratic Senators will want answers to question on progressive issues,

    If Republicans are going to (none / 0) (#12)
    by lilburro on Tue Apr 13, 2010 at 09:44:26 AM EST
    freak out anyway, might as well appoint someone as liberal as possible.  Why might Obama nominate Kagan?

    Because he is not a liberal (none / 0) (#13)
    by Big Tent Democrat on Tue Apr 13, 2010 at 09:49:54 AM EST
    I am surprised at your question frankly.

    Not a liberal (none / 0) (#14)
    by lilburro on Tue Apr 13, 2010 at 10:07:45 AM EST
    but then what - center right?

    I hope that Obama is savvy enough to carve out some ideological ground, when even conservative commentators agree that the Court will probably slide Right, which simply should not happen when a Democrat is in office.  It does not make sense.  It shows too much deference to the conservative bloc.  My hope is Obama will acknowledge that - its not just about liberal (or centrist) views, its about maintaining a "balance" on the Court.  He can at least make that made-for-TV argument.  He should definitely not be shifting the balance to the Right.


    Center Left (5.00 / 1) (#18)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:14:24 AM EST
    I think.

    Full disclosure, I imagine Obama, Kagan and I agree on 99% of legal issues.


    And would you agree with (none / 0) (#20)
    by lilburro on Tue Apr 13, 2010 at 10:17:09 AM EST
    Stevens 99% of the time?

    Yes (5.00 / 3) (#22)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:22:30 AM EST
    Herein lies one of my central points, what a SCOTUS Justice is most critically is a vote. One of 9.

    On most every issue, and I will argue even on a case like Hamdan, Kagan will vote like Stevens.

    Just as Souter did and now Sotomayor does.

    One question I will pose rhetorically is what case do they think Kagan will vote with the conservatives?

    I can not think of any. The most plausible argument is Hamdan. I think that argument fails.


    Glenn looks to the future (none / 0) (#25)
    by lilburro on Tue Apr 13, 2010 at 10:43:13 AM EST

    Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly.  Contrast all of that with Justice Stevens' unbroken record of opposing Bush's sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court's "liberal wing," and the risks of a Kagan nomination are self-evident. [emphasis mine]

    What if something like judicial review at Bagram goes to the Supreme Court?


    Judicial review of Bagram (none / 0) (#26)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:52:58 AM EST
    is an interesting question.

    I think I might write about it.


    Obama's not going to nominate (5.00 / 1) (#24)
    by Anne on Tue Apr 13, 2010 at 10:36:42 AM EST
    anyone even close to being a liberal; the best we could hope for is someone as close to the left of center as it is possible to be, but I don't think we're getting that, either.

    This is the nomination that matters to a president looking to move the Court in either direction, or even to maintaining the status quo.  I think a status quo nomination would be hard to pick, so that leaves movement to the right, or movement to the left.  

    It's not going to be a moves-to-the-left nomination.  Forget it.

    As for Kagan herself, what can be inferred from her not speaking to major issues with significant constitutional elements?  Are her positions as stated during confirmation for the SC position reflective of her desire to get the job, or her own legal reasoning?  If the latter, I find that troubling, but it would certainly lay to rest any questions about why Obama chose her for the SG position, and at the same time, allowed Dawn Johnsen's nomination to die from lack of attention.

    I am resigned to this ending up exactly where it always does with Obama - with a consensus decision he's happier about Republicans approving of than a courageous one he might actually have to fight for.

    I would beg for the latter if I thought it would help.

    So much for voting (D) because "it's all about the Supreme Court," huh?  Not that I voted for either Obama or McCain, but it's why I voted for Gore and Kerry, and in my wildest dreams, I did not see either of them moving the Court to the right - but it was always one of my fears about Obama, and a given with McCain.


    Are you really trying (none / 0) (#36)
    by Socraticsilence on Tue Apr 13, 2010 at 04:32:06 PM EST
    to argue that a Kagan or a Sotamayor isn't substantailly to the left of any appointement you could have expected from a hypothetical McCain admin?

    Stevens (none / 0) (#37)
    by Socraticsilence on Tue Apr 13, 2010 at 04:33:11 PM EST
    does have an interesting point though when he said every single member of the current court is to the right of the person they replaced (himself included).

    Yep (none / 0) (#16)
    by MO Blue on Tue Apr 13, 2010 at 10:12:10 AM EST
    Center right on many issues. Also, someone who would prefer to take the path of least resistance unless he personally feels threatened.

    Greenwald poses a question (5.00 / 1) (#5)
    by david mizner on Tue Apr 13, 2010 at 09:10:24 AM EST
    given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President's party supports?


    a) he fears political fights
    b) he's not "committed to "progressive judicial philosophy
    c) she's not much of a question mark on terrorism related civil liberties issues -- she's quite conservative -- which is why she appeals to a president who wants to protect "states secrets," detain suspect indefinitely, and assassinate American citizens.

    Occams Razor (5.00 / 2) (#9)
    by Big Tent Democrat on Tue Apr 13, 2010 at 09:22:20 AM EST
    Because he is not liberal.

    From Glenn's piece (5.00 / 1) (#7)
    by lilburro on Tue Apr 13, 2010 at 09:14:46 AM EST
    The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right.  Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted:  "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now."  Last Friday, I made the same argument:   that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by "the Right," I mean:  closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).

    If Lieberman and Ruth Marcus are saying your selection will probably move the Court to the Right, then maybe there is some opportunity to pick a more liberal choice.  Why not ask them why the Court should move to the Right?

    I guess I just find it obnoxious that consensus is now (again) that we are a "center right nation."  Of course you can't predict the future, GOP leaders are only getting more absurd (read: stupid) so I'm sure their radicalism and stupid lawsuits will push Kagan to the Left.  However, I would prefer to have a public debate on the nature of the Court before I am proven correct.

    Don't be silly. (5.00 / 1) (#27)
    by Maryb2004 on Tue Apr 13, 2010 at 10:56:51 AM EST
    You can and should advocate for a change in the way confirmations are handled.  But as of right now that isn't the way things happen in confirmations and so no one should expect that any questions about these areas will be forthcoming.

    That's true whether you support Kagan or not.  And anyone who has a real concern about Kagan's lack of record on key issues needs to oppose her now.  Although I suspect that opposition by liberals or civil libertarians will only be seen as a positive by the White House because it will make her appear "moderate".

    I agree on all counts (none / 0) (#28)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:59:57 AM EST
    I certainly dono think I am being disrespectful of those speaking against Kagan.

    Hopefully, I will write a cogent argument in her support.

    Reviewing her law review article on the unitary executive, I find it persuasive, intelligent and yes, progressive.

    Perhaps I will persuade you. But whether I do or not, I strongly welcome this debate among the Center and the Left. Much better than the silly nonsense that passes for debate among the Left and Right.


    Speaking of the silly debate among (none / 0) (#30)
    by inclusiveheart on Tue Apr 13, 2010 at 11:13:02 AM EST
    the Left and Right...  I totally support your call for more open and frank discussion during confirmation hearings - always have - but the outlandish and downright crazy that even the Republican Senate judiciary members can deliver up during a hearing would only be amplified in such a hearing.  I am not sure that that is a bad thing, but I definitely think it would be a thing.

    Actually, it is hurting our country and clearly affecting the quality of not only our political debate, but also the quality of the work product coming out of Congress.  The fact that claims about "death panels" could scare enough congresscritters to turn on their heels and run from the public option as a result does illustrate one instance of many where the crazy debate has unfortunately resulted in a real and poor outcome.

    And, while we are all here, I'd just like to give old Orrin Hatch a "nice try" with the Hillary Clinton red meat which was supposed to scare conservatives the way saying "Jane Fonda" often does; and likely also meant to re-open old primary wounds within the Dem party.


    Well get ready (none / 0) (#31)
    by lilburro on Tue Apr 13, 2010 at 11:22:40 AM EST
    Sessions appears to be planning to make this confirmation process all about HCR.

    Fondly enough, (none / 0) (#35)
    by inclusiveheart on Tue Apr 13, 2010 at 03:28:00 PM EST
    that might actually be a good reason for the Democrats to opt for more substance from the nominee.  The Republicans will be so far out there that they may as well pick the topics they want to highlight in the candidate in an effort to better control the content of the debate.  Sessions is too much of a dullard to pivot and respond to substantive issues the Democrats might raise.

    Can we put bets down (none / 0) (#38)
    by Socraticsilence on Tue Apr 13, 2010 at 04:36:17 PM EST
    on whether Sessions mentions "citizenship of the executive" in his questioning- because that's the wild card to me- the safe bets on Whacko questions are "Healthcare", "Babies" and "torture"

    Koh would be best choice (5.00 / 1) (#33)
    by MKS on Tue Apr 13, 2010 at 12:54:13 PM EST
    Top lawyer at Department of State--Hillary's lawyer.

    Koh would be outstanding advocate against torture.  

    I have always believed Hillary is very liberal on the issue of torture--in spite of her otherwise hawkish views....She validated Sr. Dianna Ortiz by taking her off the street during her vigil, to be photographed with the First Lady in the White House....At the time, Dick Cheney's attack dogs were calling Sr. Dianna a faker.....

    Hillary's lawyer at State--good recommendation for the Supreme Court.....Will not happen in this Universe....

    Kagan could end up being very liberal.  Those Justices who ended up more liberal than previously thought....Earl Warren, O'Connor, Souter....were not judges, or judges for very long, and had much experience (especially Warren) in the political sphere....They were problem solvers.....Kagan could be a problem solver willing to push the envelope....

    Greenwald's critique of Kagan includes a concern that she doesn't have a well-formed judicial philosophy--but that would indicate, again, a problem solving mindset.....See an injustice, fix an injustice....

    Earl Warren was originally a Republican from Bakersfield, Calfornia with racist views....But he was a problem solver....


    Or Elizabeth Warren (5.00 / 1) (#41)
    by Peter G on Tue Apr 13, 2010 at 08:42:06 PM EST
    I like Koh a lot, but Warren would be best in my opinion.  Not that I don't think the world of Pam Karlan; I do.

    Since we are engaging in fantasy, (none / 0) (#46)
    by MKS on Wed Apr 14, 2010 at 12:20:15 PM EST
    why not all three?  Ginsburg will probably retire...and there may be one more vacancy in the next few years...

    Not sure I'd say O'Connor (none / 0) (#34)
    by brodie on Tue Apr 13, 2010 at 02:14:09 PM EST
    "ended up more liberal than previously thought."  More  unpredictable and less rock-ribbed conservative perhaps for a Reagan nominee.  But it's hard to believe the people in charge of vetting candidates in that admin didn't know about her pro-choice and anti-sex discrim attitudes in advance.  I think they were interested in making history, and were looking ahead to 1984 by making a widely rather than narrowly acceptable selection.

    Agree though with most of the rest of your post.  And I'd add Justice Stevens himself to your list of those who didn't start out liberal but evolved that way over time.  JPS, though not a Rehnquist hardliner in 1975, would have been a moderate/mod-conservative at the time of his nomination.  

    Stevens was pro-death penalty, a big issue in the 70s, and, in another hot-button issue of that decade, had ruled against women plaintiffs a number of times on sex discrim cases when he was on the 7th Cir appellate ct.  He was also perceived to be anti-ERA.  Opposed for the nomination by NOW and Rep Bella Abzug.

    As for Koh, neither he nor that black female judge from GA excite me very much.  The former possibly because I think I'm locked in to seeing another woman on the Bench, to make a grand total of 3.  The latter just doesn't strike me as intellectually heavy-weight enough.  That or I'm dismissing her right off the bat on the grounds of her friendship with Uncle Thomas.   We all have our limits, and that's one of mine I suspect ...


    Kagan's a Harvard law graduate, (none / 0) (#15)
    by jeffinalabama on Tue Apr 13, 2010 at 10:08:34 AM EST
    as are, I think 7 of the justices. irrespective of the quality of a Harvard law degree, isn't that a lot of (I would say too much) commonality in background, if not in temperament?

    I htink Sotomayor will be the only non Harvard grad on the court.

    I have issues with institutional thinking. Every college/university/law school/ graduate school has it's specific approach. Mightn't it be time to look outside of a Massachusetts school for a justice?

    Power elites, indeed.

    Not correct (none / 0) (#17)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:12:49 AM EST
    Thomas is also a Yale Law grad.

    In addition, Ginsburg is a Columbia Law grad.

    In any event, your point is taken. All Ivies all the time is probably a bad idea.


    thanks for the correction. (none / 0) (#19)
    by jeffinalabama on Tue Apr 13, 2010 at 10:16:25 AM EST
    I was thinking it would be 8-1. Still too many ivies with it being 9-0.

    What are your thoughts on Thomas in the 9th? He's a long shot, but I liked his ruling on the Indonesian immigration case. IANAL, can't remember the names involved.


    Don't know anything about him (5.00 / 1) (#21)
    by Big Tent Democrat on Tue Apr 13, 2010 at 10:19:35 AM EST
    Frankly, since I am almost certain Kagan is the choice I have not spent much time looking around at other possibilities.

    Let me also state I would be please with Diane Wood.

    The liberals' realistic, so to speak, dream pick would be Pam Karlan. No chance of that imo.


    she's a Yale law grad... (none / 0) (#23)
    by jeffinalabama on Tue Apr 13, 2010 at 10:23:40 AM EST
    just goes to show there's no perfect candidate. Everybody has baggage.

    Being a Yale Law grad (5.00 / 1) (#42)
    by Peter G on Tue Apr 13, 2010 at 08:45:29 PM EST
    is not "baggage."  Harvard, maybe ....  Kennedy, by the way, although a HLS grad, seems to identify more with his undergraduate alma mater, Stanford.

    In our family, we always joke that (none / 0) (#29)
    by inclusiveheart on Tue Apr 13, 2010 at 11:05:09 AM EST
    my uncle's time at Harvard Law is what made him "go bad".  lol

    Hard To Tell (none / 0) (#32)
    by squeaky on Tue Apr 13, 2010 at 11:26:12 AM EST
    Yes it is true that a current advice and consent should be based on the how the last round proceeded. So changing it now to full disclosure, would theoretically affect the round if and when the next GOP POTUS gets to choose a SC nominee.

    But this system only seems to work for the GOP. Roberts nomination process was a complete sham, even by the most conservative standards. Bush got away with claiming that a large part of Robert's record was bound by executive privilege.

    I expect that if Kagen, or whoever, was allowed to answer all questions, with full disclosure as you rightly suggest, it will not set a precedent for the GOP when their turn comes around.

    BTD (none / 0) (#39)
    by Socraticsilence on Tue Apr 13, 2010 at 04:38:09 PM EST
    Is Stevens belief that every single member of the court is more conservative than their predecessor still true?

    Let's try it .... (none / 0) (#40)
    by Peter G on Tue Apr 13, 2010 at 08:39:15 PM EST
    Seat 1:  Roberts right of Rehnquist?  Nah.
    Seat 2:  Kennedy right of Powell?  Wouldn't say so.
    Seat 3:  Breyer right of Blackmun?  Nope.
    Seat 4:  Sotomayor right of Souter?  Too soon to say
    Seat 5:  Stevens right of Douglas?  Yes
    Seat 6:  Ginsburg right of White?  No
    Seat 7:  Alito right of O'Connor?  Yes
    Seat 8:  Scalia right of Rehnquist?  No
    Seat 9:  Thomas right of Marshall?  Yes
    Source:  http://www.oyez.org/seats/
    Conclusion:  B/S

    Scalia is to the right (none / 0) (#43)
    by Socraticsilence on Tue Apr 13, 2010 at 10:57:15 PM EST
    of Rehnquist he's more principled but he's also further right Breyer and Blackmun is a tossup (you used Rehnquist twice- you can only apply him once- Alito didn't replace Rehnquist obviously)

    Obviously, this is all subjective (none / 0) (#45)
    by Peter G on Wed Apr 14, 2010 at 09:58:25 AM EST
    and highly generalized.  Check my source, which I provided, re: Rehnquist listed twice.  Scalia succeeded Rehnquist as Associate Justice when Rehnquist was elevated to Chief Justice.  Then Roberts succeeded Rehnquist (again) coming on to the Court directly as Chief when Rehnquist died.  I did this by "seat"; if you want to play the game by different rules, go for it.  It's just a game anyway.  Also, I stand by my assessment of Scalia vs. Rehnquist, mainly because of Scalia's principled views on the Sixth Amendment and (to some extent) on the First (see Johnson v Texas flag burning decision, for example). (Stevens dissented on that one, as did Rehnquist.)

    When Stevens (none / 0) (#44)
    by Socraticsilence on Tue Apr 13, 2010 at 10:58:12 PM EST
    made the remark he was referring I believe to the time of his appointment but I could be wrong.