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Who Should The President Pick For The Supreme Court?

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein. - BTD

Glenn Greenwald wrote:

I'm glad this debate [over Elena Kagan] has been triggered. No matter what else happens between now and 2012, Obama's choice to replace John Paul Stevens will be one of the most consequential decisions he makes. [. . .] There's no reason that those who advocated for Obama's election -- as I did -- should adopt a passive posture of simply waiting quietly for Obama's choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court.

(Emphasis supplied.) I completely agree. Indeed, I agree with this about every issue. It is a longstanding argument of mine that progressives should decouple their advocacy from Obama's actions. When they agree, strongly support. When they disagree, strongly criticize. That said, I think it is important to be accurate in your criticisms. I've taken issue with Glenn's interpretations on Kagan. But I also think there is an implicit assumption in Glenn's approach that is unrealistic - to wit, that Obama wants a progressive on the Supreme Court. I see no evidence to support such an implicit assumption. More . . .

As a Centrist, I am confident that Barack Obama's views on who should be on the Court are much more in tune with my views than they are with progressives like Glenn. And guess what? President Obama makes the pick.

Interestingly enough, I want a Supreme Court pick who is likely to the Left of me. This is because the Court has turned decidedly to the Right of me and a leftward tug is necessary to get the Court to the place where I would want it. Thus, while it is possible the Elena Kagan may hold my view exactly, I still would prefer a Pam Karlan or a Diane Wood to Kagan. But I am fairly certain Obama does not agree with me. For a variety of reasons, it appears that Obama wants Elena Kagan. And the question for progressives will be should they oppose Kagan? In my view, they should not. Glenn writes:

It's very understandable why a President would want someone like [Kagan] on the Court during his time in office, but that's a far cry from making a case as to why progressives should consider her an acceptable choice to remain on the Court for what likely will be decades.

(Emphasis supplied.) Here is where I think Glenn makes his mistake. There is a difference between what you "want" and what you find "acceptable."

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein.

I hope that explains my difference in approach from Greenwald on this issue.

Speaking for me only

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  • Display: Sort:
    I see no benefit (5.00 / 1) (#4)
    by Maryb2004 on Mon Apr 19, 2010 at 11:02:46 AM EST
    in announcing that Kagan is acceptable if you want someone like Karlan.  At least, not until it is a done deal and he has nominated her.  

    True, I also don't think Obama listens to bloggers so I don't think it matters what you or Glenn Greenwald announce.  

    But I also doubted that it mattered what bloggers said during the healthcare debate too. And you seemed to think it was a big deal that bloggers not announce that they were ok with something less than what they wanted.

    What do you see as the difference here?

    They may read the blogs (5.00 / 1) (#6)
    by MKS on Mon Apr 19, 2010 at 11:31:07 AM EST
    Or people they listen to may read the blogs....

    The reach of the blogs is greater than might be assumed....

    Harold Koh would be even better than Wood and on a par with Karlan.

    Karlan and Koh as the next two appointees would be the best possible result....Very, very unlikely though....

    Parent

    I thought about that (none / 0) (#5)
    by Big Tent Democrat on Mon Apr 19, 2010 at 11:14:20 AM EST
    and here is my response - progressive bloggers announced that the public option was acceptable, even though they wanted single payer.

    Kagan is sort of like the public option.

    Obviously the health bills were better than Sunstein, but not by much.

    Parent

    Glenn likens Diane Wood to (5.00 / 1) (#9)
    by Anne on Mon Apr 19, 2010 at 02:30:21 PM EST
    the public option:

    If one were to analogize the search for Justice Stevens' replacement to the recently concluded health care debate, Seventh Circuit Court of Appeals Judge Diane Wood would be the public option.  Just as the truly left-wing health care approach (a single-payer system) was eliminated from consideration before the process even began, so, too, have the truly left-wing candidates to replace Justice Stevens (Pam Karlan, Harold Koh) been ruled out as "not viable."  As a result, the moderate-progressive compromises (i.e., the public option for health care and Diane Wood for Stevens' replacement) are falsely depicted as some sort of liberal extremism, merely because they're the least conservative options allowed to be considered.  Contrary to how she's now being cast, Judge Wood is a very cautious and law-based jurist who resides far from the furthest left end of the mainstream judicial spectrum.  In fact, one of her most distinctive attributes is the uniform respect and collegial relationships she has with her conservative colleagues on one of the nation's more right-wing courts.

    Reading Glenn's post on Wood today, it is hard not to come away from it wondering why a Democratic president would see Kagan as a better nominee than Wood - if in fact, she is at the top of Obama's list.

    Whatever else is true, progressives should demand a replacement for Justice Stevens whose values, approach to the Constitution, and judicial philosophy they can know, as well as someone who has embodied the function the Supreme Court is intended to serve in our political system:  namely, one which checks and limits the other branches and safeguards core Constitutional liberties, especially when the political climate makes it most likely that those rights will be assaulted.

    Compared to Wood, Kagan seems a little too blank-slate for me.

    Parent

    Anne, looks like we've double-teamed here. (none / 0) (#11)
    by FoxholeAtheist on Mon Apr 19, 2010 at 03:17:42 PM EST
    Go Greenwald!

    Parent
    The Obama Administration reads Greenwald (none / 0) (#10)
    by FoxholeAtheist on Mon Apr 19, 2010 at 03:05:38 PM EST
    that's for damn sure. Last week HuffPo's Sam Stein wrote Elena Kagan Defense Leaves Impression She's The White House's SCOTUS Choice :
    On Wednesday, the Huffington Post learned, former White House Communications Director Anita Dunn, who is leading outreach efforts around the upcoming court vacancy, reached out to progressive allies to dismiss a critical article written about Kagan. The article, authored by Salon.com's Glenn Greenwald, attacked the former Harvard Law School dean for her expansive interpretation of executive powers. Dunn's response, however, focused on a much narrower Greenwald critique -- that Kagan didn't have sufficient experience and lacked an extensive written record, having never been a sitting judge.

    Today Greenwald compares the SCOTUS replacement process to the health care 'debate'. He postulates that truly left-wing SCOTUS candidates have been pre-removed from consideration (much like single-payer) - and now even moderate-progressive SCOTUS prospects are falsely depicted as too liberal (much like the public option). Greenwald implores us not to give up on Diane Wood who he characterizes as the Scotus equivalent of the health care public option: The long, clear, inspiring record of Diane Wood.

    Parent

    When Dems aren't criticized by the left (5.00 / 1) (#7)
    by Gisleson on Mon Apr 19, 2010 at 11:52:26 AM EST
    it makes it easier for Republicans to pretend that Obama is the left.

    While I find myself in occasional disagreement with Greenwald, it's telling that the administration rolled out a lot of heavy hitters to balance out Glenn's attacks on Kagan.

    I agree (none / 0) (#8)
    by Big Tent Democrat on Mon Apr 19, 2010 at 11:59:40 AM EST
    My quibbles with Glenn have not been because of his opposition but rather because I think he misinterpreted some of the evidence.

    Parent
    The White House is doing a bang-up job of (none / 0) (#12)
    by FoxholeAtheist on Mon Apr 19, 2010 at 03:28:47 PM EST
    'quibbling' with Greenwald - as per its proclivity to quibble with anybody, of any consequence, who is remotely left of center.

    Methinks the Obama Administration knows a great deal more about Kagan than you do BTD and, evidently, they like what they know. And that is what worries me.

    Parent

    Precisely, we don't have consistent, (none / 0) (#14)
    by FoxholeAtheist on Mon Apr 19, 2010 at 04:04:41 PM EST
    substantive criticism, not even from the moderate left.

    If we're ever going to wrest the Overton Window away from the extreme right, we need to fight fire with fire - we need a critical mass of people on the Left who are willing to go medieval - aka bat-$hit crazy - on those GOP @sses.

    If the Overton Window were pulled far enough to the left, Greenwald would look like a dithering centrist. I want to live in that world for a while.

    Parent

    No matter who he picks (none / 0) (#1)
    by kenosharick on Mon Apr 19, 2010 at 08:09:37 AM EST
    the right will demonize them as a "socialist" or worse. So I REALLY hope Obama does not play it "safe" (though I am almost sure he will)by picking a centrist or center-right candidate. The repubs will attack any candidate, so why not make the base happy for a change and pick a real live liberal?

    That's not Obama (5.00 / 1) (#2)
    by Big Tent Democrat on Mon Apr 19, 2010 at 08:25:18 AM EST
    It's time to accept that and consider how best to influence him.

    Parent
    I doubt Greenwald has any influence (none / 0) (#3)
    by oculus on Mon Apr 19, 2010 at 10:26:48 AM EST
    as to whom the Pres. nominates.  Who does have any influence (except maybe members of Congress consulted before the nomination is formally announced and the WH advisors)?

    Parent
    No Influence? (none / 0) (#15)
    by squeaky on Mon Apr 19, 2010 at 10:46:01 PM EST
    The Huffington Post's Sam Stein reported yesterday that the White House this week "reached out to progressive allies" and asked them "to dismiss" the column I wrote on Tuesday arguing against the selection of Elena Kagan for the Supreme Court.

    Glen Greenwald

    Well the WH is reading him...

    Parent

    $$$MONEY$$$ is the best way to influence Obama. (none / 0) (#13)
    by FoxholeAtheist on Mon Apr 19, 2010 at 03:43:18 PM EST
    Short of that, Obama seems to be most affected by blindingly cogent, extraordinarily intelligent, impeccably researched, morally unimpeachable, incontestably rational, fact-based arguments from the true-blue Left, i.e. GREENWALD. (Don't fight it ;-)  

    Parent