by Pejman Yousefzadeh on May 10, 2010

Kagan and Obama


I have to admit to being very surprised that President Obama chose Elena Kagan as his nominee to the Supreme Court. I had thought that Judge Diane Wood of the 7th Circuit would be a relative shoo-in; yes, she is about a decade older than Kagan, and she has a paper trail, but she is exceedingly smart, the kind of judge that the President was supposed to be looking for (a powerful intellectual counterweight to hyper-smart conservatives on the Court), and possessed of an uncanny ability to persuade judges on the other side of the political spectrum of the validity of her views.

Kagan is smart, no doubt, but unlike Judge Wood, she has no experience on the bench, which means that she will not be able to hit the ground running the way that Judge Wood would be able to, and if this account is true, Kagan, as the “tenth Justice” (a common sobriquet used to describe the Solicitor General), has had very little impact on the other members of the Court in terms of her ability to persuade:

In the extensive speculation about Elena Kagan’s potential nomination to the Supreme Court, left-leaning commentators have mainly debated whether Kagan’s ideological instincts are sufficiently liberal.

Largely overlooked, though, is an issue that is ultimately more far-reaching: whether Kagan would be an effective liberal on the court — that is, whether she has the skills to win over Anthony Kennedy, who casts the decisive vote in nearly all of the court’s most closely divided cases, and whether she could match wits with Antonin Scalia and John Roberts, the court’s conservative fire-breathers.

Based on a review of the transcripts of Kagan’s appearances before the court as President Obama’s solicitor general, there is little reason to believe that she possesses particular deftness on either front. Even more surprisingly, Kagan has not infrequently raised the ire of the court’s more liberal members, her supposed ideological allies. The data points are few (she has argued only six cases before the court), but they give little reason to believe that her transition to the court would be made with anything approaching seamlessness.

Kagan’s very first oral argument — in the landmark Citizens United case — is emblematic. The first interruption came about three sentences into the argument: “Wait, wait, wait, wait.” That was Justice Scalia, convinced that Kagan had gone awry on her very first point. Kagan’s attempted explanation went nowhere. Scalia, again: “I don’t understand what you are saying.”

When John Paul Stevens tried to suggest a potential answer to Kagan, she missed the cue, prompting the normally patient Stevens to remark, “I don’t think you really caught what I suggested.”

Things got no better during the rest of Kagan’s half-hour at the podium. At about the 29-minute mark, Ruth Bader Ginsburg asked about the government’s apparent switch in position over the course of the case. Here, according to the transcript, is how Kagan’s reply went: “‘The government’s answer has changed, Justice Ginsburg.’ (Laughter.)”

The other surprising aspect of this nomination is the degree to which it will upset the liberal base, going into the midterm elections. I had figured that since the Democrats suspect that their Senate numbers will be dramatically reduced, and since they will likely not have another chance in the near future to nominate a judicial rockstar of the liberal persuasion, putting up and fighting for Judge Wood would be considered all the more important for the White House. Instead, the Administration opted for someone with no paper trail, no judicial experience, and cipher-like views on Constitutional issues. To the extent that her views are known, many of them would do more to cheer the center-right that they would to cheer the center-left. On the liberal view concerning Kagan’s nomination, Glenn Greenwald has been quite the bloodhound. This post lays out the argument against Kagan. Greenwald points out that her record, as an academic is “sparse,” that she has no judicial record (as was discussed above), that she has not spoken up about Constitutional controversies that are important to the liberal base, that she in fact appears to possess an overly generous (from the liberal perspective) view on Presidential powers, and that her views on social issues may not be as far to the left as liberals would like.

Greenwald has followed up on this critique of Kagan with other posts. In this one, he makes a point that will be on the minds of many liberals as they consider this nomination:

The most persuasive argument against Kagan is the one I’ve yet to make. I’ve spent substantial time learning as much as possible about 7th Circuit Court of Appeals Judge Diane Wood: reading countless cases and articles, interviewing (on the record) former clerks and colleagues, and comparing her jurisprudence to Justice Stevens’, and I intend to have that piece posted on Monday. Although Judge Wood is a bit more cautious and moderate a jurist than some of the candidates I’d prefer if it were my choice (such as Stanford Professor Pam Karlan), the available facts establish her as the virtually ideal person to replace Justice Stevens.

In contrast to the complete crapshoot (at best) progressives will be asked to accept if the blank slate known as Elena Kagan is the nominee, Wood has a 15-year judicial record to examine in order to know exactly what kind of Justice she will be, how similar she’d be to Justice Stevens, the brilliance she is uniformly perceived to possess, and especially, how adept she is at crafting opinions so as to attract the support of her right-wing colleagues on the very conservative 7th Circuit court. Indeed, the close, constructive and mutually respectful relationship she has forged with the conservative judges on that court is one of her most distinctive attributes. Given the pure and documented excellence of Judge Wood — who, by all accounts, was one of Obama’s finalists to replace Justice Souter last year — what could any progressive point to in order to justify Kagan’s selection instead?

As Greenwald notes, many people will logically be disposed to think–upon examination of the record–that Kagan’s view on the First Amendment’s free speech guarantees is needlessly cramped. Kagan’s characterization of the Court’s traditional stance on speech was found to have been “startling and dangerous” by none other than Chief Justice Roberts, not to mention being dramatically wrong in its description of the Court’s views on speech. Lest one think that this stance was a one-off, consider the following passage, concerning arguments made by the office of Solicitor General to the Court in Citizens United:

In the course of the argument, Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court litigator, argued that a 1990 precedent, Austin v. Michigan Chamber of Commerce, gave the government the power to limit any political communication funded by a corporation, even a nonprofit such as Citizens United. Justice Samuel Alito asked Stewart if that power would extend to censoring political books published by corporations. Stewart responded — consistent with the government’s position at all stages of the case — that yes, it would. There was an audible hush — if such a thing is possible — in the court. Then Justice Alito, appearing to speak for the room, merely said, “I find that pretty incredible.”

Incredible or not, that was, and had been for many years, the position of the U.S. government. But until that moment, it seemed to have never quite sunken in with the justices. Americans are willing to accept far more abridgements of free speech than we sometimes like to believe, but the idea of banning books strikes an emotional chord that something described simply as “prohibitions and limits on campaign spending” does not. Americans may not always live up to the Bill of Rights, but Americans do not ban books. A stunned Court eventually asked the parties to reargue the case, to consider whether Austin should be overruled.

On reargument last September, Solicitor General Elena Kagan tried to control the damage, arguing that the government never actually had tried to censor books, even as she reaffirmed its claimed authority to do just that. She also stated that “pamphlets,” unlike books, were clearly fair game for government censorship. (Former Federal Election Commissioner Hans von Spakovsky has noted that in fact the FEC has conducted lengthy investigations into whether certain books violated campaign finance laws, though it has not yet held that a book publisher violated the law through publication. And the FEC has attempted to penalize publishers of magazines and financial newsletters, only to be frustrated by the courts.) With the endgame of “campaign finance reform” finally laid out plainly, the Supreme Court’s decision seemed a foregone conclusion. Sure enough, in January, the Court ruled that corporations, as associations of natural persons, have a right to spend funds from their general treasuries to support or oppose political candidates and causes — including through the publication or distribution of books and movies.

To be sure, Kagan was arguing what she was instructed to argue as the Administration’s advocate before the Supreme Court. Still, as with the likes of Harriet Miers and Alberto Gonzales, there is a serious question as to whether Kagan possesses the necessary independence from the Obama Administration to back away from these drastically restrictive views on free speech. Anyone who argues–as the office of the Solicitor General did–that books and pamphlets may be so easily banned, does not belong on the Supreme Court.

This restrictive view of the First Amendment, along with further discussions of Kagan’s sparse record, her relationship with the whipping-boy-company-of-the-moment, her perceived lack of commitment to diversity, the possibility that despite her paper trail, Diane Wood might actually be easier to confirm than would Elena Kagan, and concern amongst the liberal legal community regarding Kagan, ought, quite frankly, to be enough to turn liberals against the White House’s pick, much as conservatives were turned against Harriet Miers. At the end of the day, however, I imagine that Greenwald is right in stating the following:

One final thought about Kagan for now. As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That’s just how things work. They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick. In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court. Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan’s confirmation. Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives — as they proved several times late in Bush’s second term [Miers, immigration, Dubai Ports] — were willing to oppose their leader whey they disagreed). The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).

To which I would add that when it comes to the liberals, the Obama Administration is prepared to throw them under the bus. The question, of course, is whether the liberals will let that happen.

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