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Tuesday, May 11, 2010

The Elena Kagan Bruhaha Between Liberals And Liberals

Obama's choice of Elena Kagan as his Supreme Court nominee has caused a firestorm across the web and in the media.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

Before getting into all the ink dedicated to this topic, it is worth reminding people that Kagan would be replacing Stevens, another Supreme Court member, who is liberal.

The "balance" between so-called conservative and so-called liberal members on the Supreme Court will not be changed by this pick unless, as some liberals are claiming, Kagan is not as liberal and Stevens.

This seems to be the crux of the problem for some liberals across the blogosphere and her lack of "prior judicial experience" seems to be another, as they fight amongst themselves over Obama's choice of Kagan.

Jane Hamsher, from FireDogLake, as progressively left on the scale as a person gets, names Kagan's lack of experience as her reasoning for being against the Kagan nomination, in an interview with Politico's David Mark, entitled "Wrath of the angry left."

Her money quote is the last paragraph though.

“Accepting Kagan just because people like Obama is wrong. That’s appropriate for American Idol, not the Supreme Court. Nobody knows what she stands for but him. It’s just a cult of personality with Obama. This is the Supreme Court.”

Other liberal talking points against Kagan, include First Amendment issues, as Cato@Liberty points out:

One problem is precisely her very short paper trail — though there are no indications she’s anything but a conventional modern liberal, on which more in future – but something to tease out of that trail, combined with her year as SG, is a certain hostility to the freedom of speech. For example, in her article “Regulation of Hate Speech and Pornography After R.A.V.,” she attempts to find a constitutional way to restrict the sorts of speech that she personally finds offensive. And in her defense of the federal “depiction of animal cruelty” statute — which the Supreme Court struck down 8-1 — she argued for a balancing test weighing the value of speech against its social harm. Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech. (Interestingly, in Citizens United, she abandoned the very “level political playing field” argument the president invokes to criticize the decision.)

I’m of course not criticizing her appearance as an advocate defending the federal laws at issue in Stevens and Citizens United — that’s her job as solicitor general — but if you read the argument transcripts, you see that she could have done so in ways less sweepingly inimical to free speech. There is other evidence to this effect (see her First Amendment articles here, here, and here, plus others lacking public links), but you get the idea.

Despite previous assertions that nominees should be straight forward and answer direct questions directly, after becoming a nominee for her current job as solicitor general, that changed fast, so the one thing we should not expect is for her to follow her own previous advice during her confirmation hearings.

The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a “charade” because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

Kagan will be confirmed. The process will be grueling but there is no doubt she will be part of the Supreme Court.

Liberals like Hamsher and Greenwald can beat their chests and stomp their feet all they want, it is not going to change a thing because Democratic officials know one thing..... those folks are NOT going to go into the next election and vote Republican.

Republicans and conservatives will come out against Kagan, even knowing full well she will be confirmed unless something so drastic is discovered that she is forced to step down, but they will calculate that the longer they draw this fight out, the closer to the November elections we get, which is the endgame for Republicans right now.

Republicans benefit from what The Hill's Brent Budowsky calls "Democratic Delusions" and will encourage the inter-party fighting as much as possible.

[Update] Other Kagan news continuing to pop up as NYT headlines a piece titled "Kagan in '97 Urged Clinton to Ban Late Abortions."

As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion rights groups.

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton's presidential library are among the first to surface in which Kagan weighs in on the thorny issue of abortion.

More from Wapo on the same abortion theme.