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Elena Kagan, Triumph of the Bland
In Supreme Court nominee Elena Kagan, President Obama has picked his perfect match.
Kagan's friends and colleagues describe her in terms that could easily be applied to Obama: thoughtful, a good listener, eager to reach out to conservatives--and loath to take politically polarizing stands.
In Kagan's case, the reflex to shun conflict is so extreme that she has managed to avoid taking a public stand on virtually every major issue that might come up in her confirmation hearings.
In "Blank Slate," his piece on Kagan for The New Republic, Paul Campos quotes Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describing Kagan as "extraordinarily-almost artistically-careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."
Because of this, Kagan is able to be all things to all people, Campos writes: "progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart."
Of course, now that Obama has picked her as his Supreme Court nominee, Kagan has quickly gained detractors. Republicans have been quick to denounce her lack of judicial experience, and even to call her an "activist"--the knee-jerk criticism of any judicial nominee perceived as potentially liberal.
There could hardly be a less appropriate word to describe Kagan, the establishment lawyer who, as dean of Harvard Law, made it a goal to increase diversity by hiring conservatives. But Kagan did clerk for the great liberal activist judge Thurgood Marshall, and, in honoring his legacy, described him as her hero. In her praise of Marshall, which the RNC is trying to turn into a liability for her nomination, Kagan quoted Marshall's own words on the Constitution, acknowledging the flaws in the founders' original document, including, of course, the status of slaves, and praising the evolution of Constitutional law through 200 years of amendments.
That endorsement of the Bill of Rights is the sort of "activism" the Republicans oppose.
But they also have found plenty to like in Kagan. In her confirmation hearings as Obama's Solicitor General, she drew praise from Republican senators when she agreed with Lindsey Graham on the legality of the indefinite detention of terrorism suspects and warrantless wiretapping, justifying the Bush-Cheney approach to the global, amorphous "war on terror."
On the left, Glenn Greenwald of Salon has argued that views such as these--especially her expansive theory of executive power--make Kagan an unfit choice, and that her appointment to replace Stevens would move the Court to the right. Like Harriet Miers, the underqualified White House attorney George W. Bush had to withdraw because of pressure from right, Greenwald argues that Kagan should meet stiff opposition from progressives.
That opposition does not seem to be taking shape, however.
"Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan's confirmation," Greenwald writes. "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)."
And then there is the matter of civility. If there is one quality Kagan embodies, it is the Obama notion of meeting rabid rightwing opposition with calm detachment. Her confirmation hearings will pose a test to this approach to politics.
On the issues Republicans love to hammer on, Kagan has given little ground for attack. She advised President Clinton to outlaw late-term abortion when she was serving as his associate counsel, has taken no particularly strong stands on gay rights (despite the row over her move as dean of Harvard Law School to keep military recruiters off campus because of Don't Ask, Don't Tell, she didn't go as far as activists on campus wanted her to, and she later opined that there was nothing unconstitutional about the Defense of Marriage Act.)
Kagan's predecessor as dean of Harvard Law, Robert Clark, wrote an op-ed piece in The Wall Street Journal explaining that Kagan didn't even take the initiative on the military recruiter ban. Instead, she simply continued existing policy.
"It would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true," Clark wrote. Adam Sorkin, the former president of Harvard Law School Lambda, a gay students' group, told the A.P. that Kagan "wasn't the big leader on this. All she did was follow the law at the time."
In her own, scant writings, Kagan has taken a carefully narrow and nonideological approach to issues from free speech to Presidential power, as Campos illustrates with the soporific passages he quotes. Despite an interesting 2005 criticism of Supreme Court nomination hearings as a "vapid and hollow charade"--words that will now be used against her--we can expect more of the same from Kagan.
Not so her critics. No sooner had Obama made his announcement than I received a breathless email from a rightwing PR outfit screaming "Supreme Court SEXpectations" about "what many believe may be the nation's first activist homosexual Supreme Court nominee," and her "extremist sexual views in matters of law."
Obama and Kagan believe in fighting fire with blandness. But the Court, and the country, could benefit from a clear progressive voice raised to counter the increasingly aggressive rightwing tirade machine.
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35 Comments so far
Show All"And for that matter, what exactly is a "clear progressive voice"?"
Visiting Professor, thank you for raising that question. Sometimes, some of us don't know if we are really progressives at all. When a social conservative supports single payer while a staunch Obamabot supports anything Obama supports, who is the progressive? If one were to compare progressives in this country to even conservatives throughout Europe and Russia, for the most part they would put us to shame. I remember those rough moments in 2008 and 2009 when I would get attacked and mistaken as a "Republican" just for pointing out the Democrats' refusal to go progressive on anything. I think that issues need to be solved non-politically and that party and even ideological labels need to be removed.
P.S.: I don't know how it has gone these past 4 months but I hear that Obama has awoken even a lot of his loyalists unexpectedly so maybe his PR machine isn't as strong.
Good points, Jennifer.
For the past 20 years I have worked with several right wingers who I have not agreed with on ANY issue, however, Obama's perverse actions on health care, finance, etc. have resulted in some common ground.
The opposite is true of Obamabots I have worked with for 20 years...they decided to turn their minds off the day after the 2008 election. Judiciary appointments are not even on Obamabots' radar.
Agreed, except I think many Obamabots are totally focused on judiciary appointments. Especially liberals from the legal trade. They're obsessed with who gets on the Supreme Court, and will take this as confirmation that voting for Obama was the right thing to do because a McCain appointment would have served up far worse than Kagan. Even if they agree with some of Greenwald's points about Kagan, they'll stick to their guns that McCain appointments would have been way worse, so we're better off with Obama. It's the "practical and realistic" position most Obamabots never abandon.
HEY ! That's not nice. At least Obama nominated Sotomayor and you still not satisified. Kagan was a supreme disappointment but she must be having some liberal credentials or the Republicans wouldn't be attacking her. Ford picked nominees and they went liberal so miracles can happen. Kagan could surprise you before you know it. Loosen up and listen to what Maddow has to say on the latest on Kagan. Don't be a chubby poochy.
Back again with your tiresome jibes at anyone daring to dissent from the Democratic Party line? Sotomayor is as centrist a nothingburger as Kagan, which are both right in Obama's wheelhouse, and that's exactly what you like and we all know this. Go wait for miracles to happen as you scarf down those Whoppers and malts, Shawn.
I don't wait for miracles to happen. I work and don't complain about elected leaders. Here, have a slice of my ham, pepperoni, and sausage stuffed pizza and a beeer wich Im having tonigt.
Cicero: "Freedom is participation in power."
Obungle publicly rebukes the Supreme Kangaroos for their ruling in Citizens United vs. FEC and then takes a long loopy right-wing shit all over the Constitution by nominating a racist, pro-Unitary Theory constipation queen from the Harvard Law School. This country is so done they might as well toss it in the La Brea tar pits to form petroleum for Obama's mother ship-load of Romulans when they finally arrive millions of years hence.
What no one seems to realize about Kagan is she's Obungle's personal impeachment insurance. She'll be his point guard on the Court when, if enough Republicans storm back to power in Congress in November (or if he gets re-elected by the plaque on his teeth in 2013), the Republicans will likely pursue impeachment over the extent of the ongoing bank bailouts, his toleration of the Fed's extra-legal buyout of bad bank paper on the scale it did, and his health care mandate deform. He's covering his green-grey Romulan arse with Kagan because he wants to make it through one term intact to get his golden revolving door lobbying gig with the MIC, American Petroleum Institute, Big Pharma or [insert other oligarch descriptor here].
Snap!! Well put!!
Alternative title for article, "The Banality of Evil"
Excellent points by the Professor, above, to which I would add only that one can hardly call "bland," as Conniff does, Kagan's support for basically all the depredations and abuses, domestic and abroad, of the Bush/Obama "war on terror." "Gruesome" "bloody" and "devious" might be more appropriate adjectives. And I think it is just such support, openly displayed and expressed by Kagan, that constitutes the principle reasons behind this nomination, which is yet another piece of the puzzle consolidating the post-9/11 New Order set in motion by Bush and fortified, at seeming every opportunity, by Obama.
The recent health care disaster illustrated that there are no progressives in positions of power in Washington, D.C. The potential candidates for that category fell with a hollow thud one after another.
There will be none appointed to the SC until we get organized and fight back.
The only thing progressive is that we are witnessing an ascending cascade of the deconstruction of social support systems, civil liberties and civil rights.
In this sense, the 'domino theory' was accurate.
In "Blank Slate," his piece on Kagan for The New Republic, Paul Campos quotes Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describing Kagan as "extraordinarily-almost artistically-careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."
Want to get ahead in Obama's Warshington? Believe fanatically in absolutely nothing, except your own burning ambition. Kagan is Obama and Obama is Kagan.
Mordechai: "Kagan is Obama and Obama is Kagan."
I beg to differ. As a friend of mine recently pointed out, Kagan, based on physical appearance at least, is "Al Gore's ugly kid brother."
OK, Visiting Prof, let's not talk about her looks, although why we shouldn't do that is a subject for another discussion. But can we talk about the fact that she is Jewish? So now how many Jews will we have on the SC if she is approved by Congress? No, I have nothing against anyone being Jewish, atheist or whatever, but shouldn't the SC reflect something of the make-up of the country? If the answer is yes, then shouldn't we be discussing her faith and what part it might play in her rulings on the SC? Human beings, after all, do have their biases...
Lastly, keep up your comments because they are well worth reading and I do enjoy them...
Yes, Jill, I agree completely. Appearance does count, whether we admit to it or not, but we've got to stop holding individuals, men or women, responsible for the luck of the genetic draw--race, sex, sexual orientation, economic background, and looks.
That said, I have always been suspicious of those, especially those competent at execution, who hide behind behind a bland, colorless facade. They will say they are easy going or nonconfrontational, and they have a real ability to disarm opposition or criticism. These are often the same folks who "get ahead" in corporations and government bureaucracies. And I know from experience, every social movement--even in the most radical factions--has its share of careerists, who are around mostly to acquire knowledge, skills, and contacts for their own gain and self-interests, rather than to advance the cause. The elite has more than its fair share of these types.
"I don't think progressives should be buying into this culture's ignorant ideas of beauty, especially when it comes to women. We need to stick with the things that matter, her record of upholding executive power and willingness to break with our Constitution. If we start playing the "appearance" game, aren't we just falling into a trap of propaganda?"
I agree with what you said but progressives have been hooked to the "appearance" game ever since 1960 though Kennedy was a heck of a lot better on the issues than Clinton or Obama. The way most of our electorate votes is like judging a book by its book cover instead of its contents. As far as the Constitution is concerned, it was already broken and Kagan intends to keep it that way. We need to pay attention to all elections where we can vote and put our hearts and minds to judging candidates by the issues and their past records over "personality" so that we can be sure that we fought for what really matters.
Cicero: "Freedom is participation in power."
Actually, she more resembles George Costanza's slightly bigger sister.
Sorry, friends, I intended no offense. I simply thought my friend's pointing out the resemblance to Al Gore was rather funny. Clearly no one currently sitting on the SCOTUS is going to win any beauty contests, and I think anyone who sticks his/her neck out into the public arena, especially when espousing dubious ideological and policy positions, is fair game for all the brickbats we can throw at them, including jabs about the way they look. Women included. This, after all, is the essence of political caricature, isn't it?
If Obama is going to pick someone that far to the reich why not a Christian like Mussolini or Hitler?
Well, both are dead. Neither was American and neither was an attorney let alone a judge.
Well, just remember, she writes for "The Progressive" which, like "The Nation", is is devoted to seeing Dems get reelected, no matter how bad they are. Their "critical" screeds of the Party are simply used to give them cred with progressives so they will fall in line when, once again, these pubs will tell us that we have no "real choice" other than Dems .......
Well said! It's high time we create a "real choice" other than the miserable Democrats.
Kagen exposed herself when she endorsed the concept allowing the president to become dictator--she is a neocon just as Obama is. Neither is "bland." Both are repugnant. The Republicans oppose her, but for all the wrong reasons as usual. Note how much weight Conniff puts on Kagan's association with Marshall, a man who in spite of his accomplishments had some serious shortcomings. The Prof's points are very good; it's too bad a wider audience won't see them. Promoting such an unknown who is essentially unknowable into a position of power is an invitation to disaster, as I think is already proven by her record as Solicitor General. IMO, Visiting Professor, Jill and even myself are far better fit to be a USSC Justice.
"Promoting such an unknown who is essentially unknowable into a position of power is an invitation to disaster"
à la 0.
Whew!!!
At least you didn't ask me to cut my hair or wear a suit and tie!
Obama is only appointing another "progressive" like himself.