Will Elena Kagan Move Court to the Right?

Law prof Jonathan Turley fears Elena Kagan will move the Supreme Court to the right, especially on civil liberties and support for Bush-era policies:

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

He also makes a point I made last night: Obama has never been the liberal that liberals thought he was. [More...]

Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.

I'm still being pragmatic about this nomination. I wonder if Professor Turley and others so disappointed about Kagan would would rather Obama appointed his reportedly second choice: Former DOJ top prosecutor (now an appeals court judge) Merrick Garland. To me, the thought of three Supreme Court Justices so heavily molded and entrenched in their prosecutorial view of the world and constitutional rights(Alito, Roberts and Garland) is nothing less than frightening, and of far greater concern than Elena Kagan.

On a related note, I just did a Lexis search for opinons by Garland. How is it possible he's been a circuit judge on the D.C. Court of Appeals since 1997 and has written only a handful of opinions? Does he write them under another name or did I miss them? Seems to me his nomination was a reward for the OKC bombing prosecution which as Principal Associate Deputy Attorney General, he oversaw from his office in Washington. McVeigh's trial began in March, 1997. Garland was appointed as a federal appeals court judge in April, 1997.

What was Obama thinking in making Garland one of his top choices for the Court? That Republicans would heartily agree and confirm him?

I don't expect Elena Kagan to be a champion of liberty, but I do think we could have done worse.

As to President Obama, I wonder how much of his rock star following he'll lose when running for re-election. I agree with Turley (assuming I am interpreting him correctly) that he's not just being pragmatic, he's showing his true centrist colors. But, you can't say he didn't warn us. While others remember "hope and change" as his mantra from 2008, what I remember most is "There are no red states, there are no blue states, there are only the United States." He's always been about bi-partisanship and compromise and I don't know why people expected anything different from his Supreme Court picks. And at least it's not John McCain doing the picking, then we'd really have something to complain about.

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    Wilentz says Kagan is a "pragmatist"... (5.00 / 2) (#1)
    by FoxholeAtheist on Tue May 11, 2010 at 02:08:38 AM EST
    What are we to make of Sean Wilentz telling us his former student, Elena Kagan, is a "pragmatic" woman whose "deepest dedication is to the constitution of the United States" (from HuffPo.) Perhaps Wilentz means to tell us what Greenwald has been telling us for some time about Obama's, and Kagan's, 'pragmatic flexibility' on the rule of law and the Constitution. It may all come down to indefinite detention without trial.

    Obama was, arguably, grooming Kagan for the Supreme Court when he appointed her to be his Solicitor General. It must have been no surprise to him when Kagan expressed clear support for indefinite detention during those confirmation hearings. From the NY Times:

    [Kagan] said that someone suspected of helping finance Al Qaeda should be subject to battlefield law -- indefinite detention without a trial -- even if he were captured in a place like the Philippines rather than in a physical battle zone.

    Kagan, evidently, imagined there was some way around the 2008 SCOTUS Boumediene decision; which, IIRC, nullified Bush's legal claim that the Constitution gave the President the power to detain indefinitely without trial. At any rate, in May of '09, Obama promised to seek new legislation to provide a firmer legal basis for indefinite detention. From the NY Times:

    He said he would "work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

    However, on 09/22/09, the Justice Department announced that:

    "the administration would rely on authority already provided by Congress" under the 2001 use of force resolution [which is not quite the same as Bush's claim that the Constitution gave him that right].
    Kagan may be Obama's SCOTUS ace-in-the-hole when the next unfortunate Guantanamo detainee seeks to challenge this warmed-over legal basis for indefinite detention.

    You would think a "pragmatist"... (5.00 / 1) (#3)
    by citizen53 on Tue May 11, 2010 at 02:49:38 AM EST
    would not care about principles so if it takes moving right to do a deal, so be it.  

    The problem with Kagan is Obama.  Another disappointment.  These are among the most important choices.  Many never get to make them.  The Repubs are in disarray and repudiated.  What better time than to shove a know liberal down their throats.  There are plenty to choose from.  If they reject the choice, they will fall further in esteem in the public's eyes.  Only then be accommodating and make the apparent Establishment choice than Kagan appears to be.  The GOP backed down regarding financial "reform" and that shows the dire straits they are in.

    Obama offered hope and change.  This is the type of moment when it can actually occur.  Does this choice, like others in a long line, really convey that?  Does Obama believe he is so weak he must accommodate the other side?  Once again, hold your nose and settle.  That seems a more realistic slogan at this stage.

    It would be interesting to look back at the rhetoric Obama supporters, especially here, who, I suspect, told us how it would be different, less cynical, turning the page.  How many of the present Obama policies and appointees, starting with Emanuel, would they have agreed with back then, in the heady days, when it was all about principles and the corrupt ways of DC?    

    Now, it's just a different set of players playing the same game, including Obama, though he promised otherwise.  Remember the commercial about Tauzin?  And something else that has not changed is the way that supporters line up, despite policies to which they once objected, to follow along and even defend who they support, just like their former brethren on the other side.  Playing the same game.

    Liberals will go along in the end, too.  That is how it always comes down, because we can't let the other side win.  And Obama knows this, and uses this to treat his friends worse than his enemies.  He profits from the very rigged system he told us he would change, thus making back room deals with Tauzin himself.  It evidences that the Establishment forces that control the Democratic Party, and America, are not his target, but his benefactor, albeit he presents it in a softer form that the GOP.  Nothing has changed at all.

    What's for public consumption seems no different from professional wrestling, at this point, in DC, and even here.  Most everyone playing their roles in the script, with the outcomes, for the most part, already known by the players.

    So it goes.  I am so glad there are more important things to do.

    Please note... (none / 0) (#4)
    by citizen53 on Tue May 11, 2010 at 02:54:32 AM EST
    I was intending part of this for a different audience, and did not mean to challenge anyone here at this site.  I should be more careful in my haste, although I do think the points about supporters, past and present on the issues, and frequent behavior, is legitimate and accurate.

    In fairness, she doesn't have to be (5.00 / 1) (#7)
    by andgarden on Tue May 11, 2010 at 06:14:06 AM EST
    "a right-wing Manchurian Candidate" to move the court somewhat right. Personally, I don't believe she will do even that.

    I don't think I could, with a straight face, entertain the notion that she could possibly be any worse than Steven Breyer--who is mostly pretty good.

    Breyer is "mostly pretty good?" (none / 0) (#10)
    by gondobie on Tue May 11, 2010 at 08:39:01 AM EST
    Breyer has been a ways to the right of Stevens--and Souter, for that matter-- on most core Bill of Rights protections.  So, that must not be an area where you would agree with, say, a Stevens-like perspective.

    Get a back bone (5.00 / 2) (#9)
    by mmc9431 on Tue May 11, 2010 at 08:08:04 AM EST
    I'm thoroughly disgusted with the Democratic leadership being so concerned with being pragmatic and having someone who is a consensus builder (Yeah, just like Scalia, Thomas and the other current right wingers on the bench).

    Republicans openly appoint people that they are able to flaunt to their base. Miers ran into a buzz saw when she was deemed too soft. Only a hard line conservative would do.

    Democrats should feel positive enough in their core party principles, that they don't feel the need to run and hide from them.

    No wonder we live with the image of the "weak party" We rightly deserve it. We don't even have the power of our own convictions.

    How far we've descended (5.00 / 1) (#11)
    by gondobie on Tue May 11, 2010 at 08:50:17 AM EST
    It wasn't that long ago (was it?), when I was a kid, that President Gerald Ford--Nixon's VP!--nominated John Paul Stevens to the Supreme Court.  Ford stated that he would be perfectly comfortable with history judging him on the sole basis of that appointment.

    Now, we have a Democratic President nominating, as others have pointed out, an intellectual cypher to the court--and one who virtually everyone agrees will move the Court to the right, whether incrementally or substantially.

    But, as Glenn, Jeralyn, and BTD have pointed out, this should have surprised no one.  It was upon this nomination that I smoked my last bowl of Hopium.  Better than McCain as to Supreme Court nominees, certainly--but now I find myself hoping that Ginsburg remains on the Court through the Obama years till another Dem hopefully gets elected.  The thought of Justice Merrick Garland is almost too much to take.

    Actually, I'm not so sure that (none / 0) (#15)
    by brodie on Tue May 11, 2010 at 10:14:45 AM EST
    as of the time of his nomination by Ford in '75, that Stevens wasn't to the right of where Kagan is with her nomination today.

    Back then he had neanderthal male attitudes about women (i.e., typical Republican), especially in the workforce, and didn't take their employment-related legal grievances seriously.  

    Stevens also had some dubious and not well thought out notions of free speech.  He dissented, for instance, in 1989 when the Ct invalidated a state flag burning law and threw out the conviction of a TX man facing a prison term for burning the American flag at the RNC in 1984.

    A decade earlier, Stevens wrote the majority Ct opinion that permitted the FCC to censor non-obscene "indecent" speech by broadcasters.

    Also at the time of his senate committee hearings -- not televised btw -- no one asked him about his views of abortion rights.  He quickly got confirmed (was it a full 19 days from his nomination?) and went on the Ct with what we would consider today as many questions left unasked about his views.

    Maybe it's fitting that the person selected to replace Stevens should also receive a quick confirmation with little scrutiny of her legal views.  Won't happen, of course.  


    Good points, all. (5.00 / 1) (#18)
    by gondobie on Tue May 11, 2010 at 11:56:34 AM EST
    As a criminal defense attorney, I see, virtually every day, governmental abuses of power which drastically affect the lives of individual living persons.  Nothing I have seen or read about Elena Kagan gives me the slightest hope that she will come anywhere near matching Justice Stevens' record on 4th, 5th, 6th, and 8th Amendment issues--or executive branch power issues.

    I would hope that this is some kind of "stealth" progressive nomination; but, as BTD, Jeralyn, Greenwald, and Turley have pointed out, since Obama is not himself a progressive, there's absolutely no reason to think he would appoint one.


    The myth (5.00 / 3) (#12)
    by DancingOpossum on Tue May 11, 2010 at 09:11:56 AM EST

    No wonder we live with the image of the "weak party"

    The myth of Democratic weakness is one that needs to be exploded, stat.

    It's not weakness. They are doing exactly what they want to do. They're not betraying your values -- they don't share those values.

    Liberals really need to get this. Democrats are not poor put-upon folks who are scared to stand up for their principles. They don't HAVE those principles.

    If they wanted what you want, they'd make it happen. Period. That they don't points to the obvious conclusion.

    Move To the Right? (5.00 / 1) (#13)
    by squeaky on Tue May 11, 2010 at 09:23:57 AM EST
    Hhahahahha..  not sure it can move any farther to the right than it already is.

    I see (none / 0) (#5)
    by Ga6thDem on Tue May 11, 2010 at 05:52:19 AM EST
    Kagan as Obama waving the white flag again. It's just more of the same from him. I don't know why anyone would expect anything different.

    Of course you do (none / 0) (#20)
    by Socraticsilence on Tue May 11, 2010 at 05:11:42 PM EST
    its what happens with confirmation bias.

    Thank God (none / 0) (#6)
    by lentinel on Tue May 11, 2010 at 05:54:21 AM EST
    for the "teapartiers".

    It makes it so simple.

    If they are against Kagan, that's all we need to know.

    That's why liberal blogs so enamored of Obama keep featuring videos of them.

    Kagan isn't very liberal about civil liberties? Not so liberal about the power of the executive branch? Supported Bush's policies? Not a champion of liberty? Whatever.

    At least it's not McCain being a pragmatic centrist and nominating Kagan. That would have been disastrous.

    the only "liberals" (none / 0) (#8)
    by cpinva on Tue May 11, 2010 at 07:24:01 AM EST
    He also makes a point I made last night: Obama has never been the liberal that liberals thought he was.

    who truly believed that were those blinded by his light. but then, as that great ancient greek philosopher, BTD, stated:

    "pols are pols, they do what they do."

    i believe this was said shortly before he was made to drink hemlock, by those very same pols, doing what they did.

    True that about Obama. (5.00 / 1) (#14)
    by brodie on Tue May 11, 2010 at 10:00:17 AM EST
    Also true to some extent about people like Turley.  He's perceived by libs as almost a liberal's liberal, but he's actually not quite that pure nor that lib.

    Two cases:  Citizens United -- Turley endorsed the RW majority opinion favoring corporate power in buying elections.

    And Turley backed the RW impeachment effort against Bill Clinton.

    Not pure, but almost always difficult to please:  he was against the nomination of Sonia Sotomayor.  Not the intellectual heavyweight the left needed on the Ct, nor is she sufficiently lib enough for Turley.   She was a Latina Thurgood Marshall pick, roughly is the condescending assessment of Prof Turley.


    I thought (4.50 / 2) (#16)
    by Emma on Tue May 11, 2010 at 10:25:01 AM EST
    Thurgood Marshall was a pretty good Justice.

    Manchurian candidate (none / 0) (#17)
    by diogenes on Tue May 11, 2010 at 11:47:03 AM EST
    She was about 25 years old when Bork was Borked.  She is really a leftist who has been self-consciously a stealth candidate for decades, being a smart woman who saw what happened when someone gives out too many opinions.  Luckily, since she has never been a judge she never had to be pinned down on a given issue.

    Yes, my take is that she is center- left (5.00 / 1) (#19)
    by KeysDan on Tue May 11, 2010 at 04:56:57 PM EST
    in politics and will bring needed progressive values to the Supreme Court. With long-term aspirations to serve in government, particularly in the judiciary, her sense of Borkian history does seem to have guided her.   Evaluating her record seems to be creating problems with an individual of her background, including those who called for someone who was not a judge, maybe even a governor or senator. Her evaluation is more complicated given the scanty body of work published as a professor, although as dean the character of academic responsibilities changes dramatically and publications are the exception rather than the rule. With a record as a judge, limited information is often gleaned after handlers help sanitize and rationalize opinions such as in the New Haven firefighters case: if a senator, the voting record could be misconstrued in cases of voting for it before voting against it, and governors might manipulate the basis for their unpopular decisions to make them look more palatable.  So how to evaluate Ms Kagan?  Perhaps the way we may evaluate scholarship or contributions in the fine arts, by performance and assessments of other experts in the field. It requires more of the evaluator, but it there to see and hear, and is not a case of just reading the tea leaves.  Predictors and outcomes, Souter v Rehnquist, for example.   Of course, it would be nice if every question raised by the nominee yielded a crisp answer, but if you believe that is the way to confirmation, ask Justice Bork.