The liberal case against Kagan is overstated

[babylonsister]

http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chance

The liberal case against Kagan is overstated
President Obama's Supreme Court pick is mainly guilty of muting her progressive ideals in the service of ambition
By James Doty


Over the past several weeks, a chorus of progressive voices has portrayed Elena Kagan -- whom President Obama is expected to nominate for the Supreme Court on Monday -- as an intellectual cipher. She may be smart, they argue, but she has provided few clues about her thoughts on any major legal issues and even fewer about her judicial philosophy. Even worse, her critics claim, what we do know about Kagan’s beliefs suggests that she is sympathetic to Bush-style arguments on executive power and thus, on at least one major issue, threatens to move the court significantly to the right.

These criticisms are, at the very least, dramatically overstated. A review of Kagan’s professional record and writings suggests that she would fit comfortably on the left-hand side of the judicial spectrum.

snip//

Following her clerkship with Marshall, Kagan worked on Michael Dukakis' presidential campaign, helped shepherd Ruth Bader Ginsburg’s nomination through the Senate Judiciary Committee, and served two separate stints in the Clinton administration before assuming her current role as Obama’s solicitor general. None of this speaks directly to Kagan’s personal beliefs, of course. But it does suggest that she feels most at home in the company of those who are ideologically left-of-center.

Of course, left-leaning political sensibilities don’t necessarily correlate with a liberal judicial vision. One can believe, for example, in the goals of social equality and economic fairness but think that such ends should be achieved legislatively, not judicially.

Kagan’s (admittedly scant) writings on the subject suggest that she might instead embrace Marshall’s view that the Constitution should be interpreted expansively to provide rigorous protections for the dispossessed. In eulogizing her former boss in a 1993 law review article, Kagan observed that Marshall’s pragmatic jurisprudential approach considered not just the law as written, but “the way in which law acted on people’s lives.” As Kagan noted, this approach demanded “special solicitude for the despised and disadvantaged.” Kagan lauded this view of the judicial role, saying that “however much some recent justices have sniped” at Marshall’s vision, it remained “a thing of glory.” In the article’s closing, Kagan nodded to the progressive view that the Constitution grows and adapts to meet the needs of a changing society, giving Marshall “credit” for our “modern Constitution.”

Even if Kagan’s judicial beliefs don’t align with Marshall’s in all particulars, her willingness to praise his general judicial principles suggests that she, like Marshall, sees the Constitution as a dynamic bulwark against majoritarian tyranny and political persecution. This contrasts not only with the beliefs of Marshall’s antagonists like Scalia, who view the Constitution as static and unchanging, but even with Justice Sonia Sotomayor, who stated blandly at her confirmation hearing that her only interpretive guidepost was “fidelity to the law.”

more...

http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chance

[NJmaverick]

1. What motivates them to engage in hyperbole that borders on dishonesty?

That's what I would like to know

[babylonsister]

2. Because they want it all their way and they want it now, dammit.

Sounds too familiar to me, and not in a good way.

[WeDidIt]

5. Glenn Greenwald gives them their marching orders

and they go forth, not unlike Limbaugh's ditto heads.

[saltpoint]

17. I hope people salivating over Greenwald will shove him aside for a while

and explore other writers in other genres.

Then they can return to Greenwald if they can still stomach his limitations.

He's very smart and good with language but he's not a big-picture writer.

[freddie mertz]

20. Looks like Greenwald is the new Emmanuel Goldstein.

Bill Maher is so one week ago.

[rudy23]

24. Ooh, I just love a good Hamshering! Who is it this week, Greenwald? Any mention of Greenwald

gets 1000 points!

[vi5]

3. Sorry, that's pretty vague a defense......

Seems more like blank slate projection that requires quite a bit of inference than an actual defense that she will be solid liberal voice on the court.

Some of what I've read in the past day or so has been somewhat heartening, but I'm still not convinced so I obviously have a lot more reading to do on the subject.

I don't plan on listening to or reading anything by either the "Obama has been right all the time and we need to defende him and anyone who doesn't is a smear monger!!!" crowd or the "Obama is a facist Bush wannabe who wants to shred the constitution and burn it in tribute to corporate America crowd!!" puts forth either because at this point both groups have cried wolf too goddamn many times.

[Captain Hilts]

4. She seems fine with me. nt

[WeDidIt]

6. Liberals are outnumbered in this country nearly 4 to 1

Conservatives are outnumbered in this country about 3 to 2.

It's far more difficult to get somebody confirmed if they've expressed liberal views than if they've expressed conservative views.

Liberals learned in the nineties, if you're liberal and want to be in the federal judicial system, you've got to keep quiet about your political views and leave no trail. It's the only way to get confirmed.

[niceypoo]

15. So, she is secretly liberal?

...she just leaves no discernible trail?

[WeDidIt]

21. I wouldn't say secretly

There is a pretty good trail to indicate she is liberal.

I'm saying it's highly likely she is much more liberal than the record she has would suggest. She is highly likely as far to the left as Alito is to the right.

[Inuca]

7. Have also a look at this

http://www.dailykos.com/story/2010/5/10/865113/-Why-Kagan-Makes-Sense:Citizens-United

[cornermouse]

8. Another round of "evil liberals and how dare they object" on DU.

What a surprise. Not. n/t

[qazplm]

11. no

more like, what are you objecting about?

It would be one thing if she had actually pushed conservative views at some point, but she hasn't. The worst thing that can be said is that she isn't flowing with liberal positions in the past, but anyone who worked for Dukakis, and did all of the other things she did, is pretty darn clearly left of center.

I'm not sure there has ever been a nominee more liberal than Dukakis (and before someone takes that as a criticism, I voted for him).

You know if someone hangs out in bars all their life the odds are high, not 100 percent, but high, that they drink alcohol.

[cornermouse]

12. n/t.

[WeDidIt]

13. I can understand some of the fear.

They fear that with a lack of a strong liberal record in the judiciary, she could become the liberal version of Souter.

And that's what it boils down to. The liberal objections to Kagan are motivated by fear.

That fear needs to be tempered with a few facts, though. Overall, the America polity prefers a moderate to conservative judiciary. The Bogeyman of "Liberals" is strongly entrenched in our culture, thus an openly liberal candidate for the Judiciary will always have a more difficult road to confirmation than an openly conservative nominee.

You could see this in the dichotomy of two confirmations under Bush. Alito was openly rightwing and made no bones about it. Alito was the first nominee in a very long time who had threats of a filibuster bantied about. Roberts, on the other hand, had a conservative record but not an overtly rightwing record. He fairly sailed through confirmation.

Then look at Sotamayor, who flew under the radar in her career in the judiciary. The mere hint of some liberalism made her confirmation more difficult.

[cornermouse]

14. And your psychoanalyst credentials would be?

Yeah. That's what I thought.

[WeDidIt]

16. I did not psychoanalyze a thing.

I made the observation that the liberal objections to Kagan are 100% rooted in the fear that she will be the Liberal version of Souter.

That is 100% factual because the only objections raised are related to her lack of a record.

Your lashing out about it only serves to underscore that fact.

[cornermouse]

18. And I made the observation

that you don't know what I think or feel and that by trying to attribute a emotion to a class of people you overstep your boundaries.

[WeDidIt]

19. I'm overstepping nothing

and from your reaction, it's pretty clear where you are on the issue.

[cornermouse]

22. Yep. I'm an evil liberal who thinks there were better options

than Kagan and who thinks we deserve someone who is actually a real, live, honest-to-God liberal sitting on the S.C.

And yes. When you started throwing the word "fear' around so lightly, you did overstep the boundaries.

[WeDidIt]

23. You should have run for president

then the decision would have been yours.

Of course, there would have been that whole "winning" obstacle to overcome, but we can';t have everything.

It is very evident that you are a very fearful person. That oversteps no boundaries.

[BootinUp]

9. ssshhhhhhhh!

we don't want the repuglicans to know too much about her!!!

[WeDidIt]

10. They've been preparing for a Kagan nomination since she became Solicitor General

They know more about her than DU ever will.

[ClarkUSA]

25. In other words, Greenwald is full of his own constitutionally clueless shit. Again.

Unabashed liberal and fierce BushCo opponent Patrick Leahy has said this morning on MSNBC that Elena Kagan is a supremely qualified candidate to be on the Supreme Court.

[Jennicut]

26. About her position on executive power:

In a 2001 law review article, Kagan defended efforts by the Clinton White House to impose greater centralized control over executive agencies, the New York Times reports. Also, after being selected to serve as solicitor general, she endorsed an interpretation of the Congressional authorization to use military force against al Qaeda.

In her role as the government's top lawyer, she has also had to defend the administration's attempts to muzzle lawsuits using the state secrets privilege and has fought a ruling granting habeas corpus rights to some detainees in Afghanistan.

However, in a 2005 letter to Sen. Patrick Leahy (D-Vt.), Kagan and three other law school deans expressed their opposition to a bill proposed by Sen. Lindsey Graham (R-S.C.) that would strip the court of its power to review the detention practices at the prison at Guantanamo Bay, NPR reports.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals."http://www.cbsnews.com/8301-503544_162-20004539-503544.html

I still don't have a totally clear picture where she stands. Certainly not as clearcut as Greenwald wants people to think. I need more info but then we all do. This is one confirmation process I am really, really interested in.