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Monday, May 10, 2010

SCOTUS News: Obama Names Elena Kagan As Supreme Court Pick

A little late to this one so just going to link the story, and then reactions from those that have already responded to the news, on the left and the right.

The Story:

Obama Is Said to Choose Elena Kagan for the Supreme Court

NBC: Obama to name Kagan for high court

Obama to Senate: Act fast

Elena Kagan's Goldman Sachs "Connection"

Usually when the politics, the right vs left politics, is taken out of the equation, you get some measure of truthfullness about the actual candidate.

So, the reactions section here is being done a tad differently than usual, instead of the typical the left is pro Kagan and the right is opposed to Kagan, I am going to show which on the left is against Kagan and why and which on the right are not as opposed as the media is portraying.

My reasoning is twofold... one to show it isn't as black and white as one political side being for and one against but more importantly to me, those on the right supporting or not actively opposing Kagan explains why they are not totally against the pick and those on the left opposing, explain their reasoning.

Hence, the left explaining to the left why Kagan is not the best pick for their political benefit and the right explaining to the right why a Kagan pick is not as bad as they thought on first glance.

Reactions from the Left:

Greenwald from Salon against Kagan with "The case against Elena Kagan"

The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted: "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." Last Friday, I made the same argument: that 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.

Greenwald then goes on to dig into Kagan's record.

Taylor Marsh with "The Era of the Executive Branch Continues"

We no longer have a Congress of which to speak. Republicans or Democrats in Congress exist only to support the executive today. The concentrated power of the big two political parties doesn’t allow independence, which will be greeted with a cutting off of support and money. So, Democrats will simply shrug at more power being represented through Ms. Kagan’s appointment, as the politicians in Congress have no stomach for standing up for pesky things like people’s rights any longer, including those simply suspected of crimes, even if we are protected while investigations ensue. As for Republicans, most will stomp and squeal, but not in any honest manner beyond hyper partisanship, making a mockery of dissent.

…and Pres. Obama gets an executive branch supporter, which will likely aid other presidents in years to come, further solidifying the hyper executive branch that lords itself over Congress, who is now an mostly impotent branch of political rubes, few of whom have any principles on which they will stand to fight.

Marvin Ammori from Huffington Post with "Citizens United: Does Elena Kagan Disagree With Barack Obama On Corporate Speech?"

Looking at Elena Kagan's scholarship, I doubt she agrees with Barack Obama and Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).

Long explanation, so better to read the entire thing for yourself.

Reactions from the Right:

The Volohk Conspiracy with "Preliminary Reflections on the Kagan Nomination"

In my view, it is perfectly legitimate for senators and others to oppose a professionally qualified judicial nominee because of flaws in her judicial philosophy. On this, I agree with Barack Obama. At the same time, any nominee must be weighed against the likely alternatives, not just against some ideal pick. Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to choose. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle regardless of what they do, they will have little reason to go with relative moderates.

Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration’s judicial philosophy. Kagan herself defended the legitimacy of inquiries into a nominee’s judicial philosophy in a in a 1995 article. Despite some excesses, I think we were fairly successful at doing that during the debate over Sotomayor, which gave new prominence to property rights issues, and forced Sotomayor to publicly repudiate liberal views on the importance of “empathy” and international law. Hopefully, the Kagan hearings will be another opportunity to advance public debate over important legal questions.

Hugh Hewitt with "Solicitor General Elena Kagan"

President Obama's nominee for the United States Supreme Court is one of the most qualified individuals in the country for the job simply because of her experience as Solicitor General and in the White House Counsel's office. There are very few places in the world where a lawyer actually practices constitutional law, and those are two of them. SG Kagan is undoubtedly very smart, very likeable, and will be supported by a broad cross-section of the Bar, including many senior members of the conservative judicial establishment.

The only thing that could derail her nomination would be an extremely unlikely series of mistakes at her hearings. The GOP members of the Judiciary Committee should strive to fully explore her judicial philosophy and, rather than eating up time with long winded speeches, should ask brief questions on key issues and give her the time to answer at length. Though stranger things have happened, it is hard to imagine the fall term beginning without Justice Kagan on the Court.

Random info:


In response to a question from Sen. John Coryn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

Jonathon Turley:

President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.

For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.


Ruth Marcus at Wapo with "A Supreme Court shift to the right?"

Think Progress with "Lieberman satisfied by prospect that Obama nominee could make Supreme Court ‘slightly less liberal.’ "

A lot of ready if you follow my links, then follow the links in each individual reaction, but the bottom line is this;

Obamabots and hard core liberals will back Obama's pick for no other reason than it is "Obama's pick" and hard core conservatives will oppose it for the very same reason.

Those that actually want more information about the pick of Kagan itself, instead of the rhetoric from the left or the right...will follow all the links, read up and make their decision independently.