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Elena Kagan

From the moment John Paul Stevens announced that he would step down from the Supreme Court, the person most often described as President Obama’s most likely choice to succeed him has been Elena Kagan, his solicitor general. It now appears that this speculation will be confirmed tomorrow morning. I could hardly be more depressed.

For months, I have made lists every week or two of political topics to blog about, and then not followed through. I always decided, as I reviewed these lists, that I would be better off pointing to the posts or articles of far more knowledgeable people, with nothing original for me to add, so why bother? Well, this time I’ll bother, though again, all I will do is point to others’ writings. Actually, it will suffice to point to one post, since it contains many references. As word circulated yesterday morning that Kagan would be chosen, Glenn Greenwald provided a note with a reference to his case last month against Kagan along with a list of other pieces arguing against her appointment.

It’s surely too late. As Greenwald noted last month, the time to stop Kagan’s appointment was before her nomination. Her lack of a judicial record will almost certainly ensure Senate confirmation. Yet another example of Obama’s conservatism and unwillingness to fight the Senate to bring about change we can believe in.

Here’s one excerpt from Greenwald’s argument last month:

. . . 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).

Consider how amazing it is that such a prospect is even possible. Democrats around the country worked extremely hard to elect a Democratic President, a huge majority in the House, and 59 Democratic Senators — only to watch as the Supreme Court is moved further to the Right? Even for those who struggle to find good reasons to vote for Democrats, the prospect of a better Supreme Court remains a significant motive (the day after Obama’s election, I wrote that everyone who believed in the Constitution and basic civil liberties should be happy at the result due to the numerous Supreme Court appointments Obama would likely make, even if for no other reason).

There will, of course, be some Democrats who will be convinced that any nominee Obama chooses is the right one by virtue of being Obama’s choice. But for those who want to make an informed, rational judgment, it’s worthwhile to know her record. I’ve tried here to subject that record to as comprehensive and objective an assessment as possible. And now is the time to do this, because 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.

. . .

One of the difficulties in assessing Kagan’s judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That’s not only because she’s never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama’s Solicitor General, where (like any lawyer) she was obligated to defend the administration’s policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: “it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”

As I’ve previously documented and examine further below, 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.

Categories: Law, Politics
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