Politico and others are reporting that Obama is likely to nominate Solicitor General, Elena Kagan to replace the retiring Justice stevens on the US Supreme Court.
She looks like a pretty safe choice to me. Lefty, but respected by the right. Very smart. No dirt that I can see.
The only thing even approaching a “controversy” is that she was vocally very critical of military recruiters being on campus when she was Dean of Harvard Law on the grounds that “Don’t Ask, Don’t tell” was at odds with the philosphy of the school), and she assisted with legal appeals to the decision which forced campuses to allow it, but she never disobeyed the law or blocked recruiters from having access to students, so there’s not really very much there there.
The astute comments on the CNN profile seem mostly focused on calling her a lesbian, saying she looks like a man and calling her a “radical leftist.”
If there’s any legit question at all, it’s that she’s never served on a bench, but this is no Harriet Miers. Her CV is pretty extensive and impressive.
I’m sure someone will make a fuss over the lack of judicial experience, but given her background you can’t say she doesn’t know the law. I don’t think a filibuster is in the cards. She’ll be confirmed.
Glenn Greenwald has been outspoken in his criticism of her. His main argument seems to be that she has no meaningful judicial record and hasn’t shown that she would stand up for the progressive view, making her a risky addition to the court (the Democrats’ very own Souter).
That she has no judicial record is not, I think, a useful criticism of her potential performance on the Court. Lots of justices were never judges, and it’s not clear that they did any “worse” than those with the experience, whatever that means. The Supreme Court, moreso than other courts, is a policy-making body. Ergo, it’s appropriate that academics, practicioners, and politicians be represented on it. Earl Warren had no judicial experience before becoming Chief Justice, and he did all right.
However, her lack of a judicial record does mean it may be tougher to predict how she’ll behave on the bench, which is a question of critical importance – both for the president in choosing a nominee and for interest groups in deciding whether and how strenuously to support/oppse her. Then again, a judicial record isn’t always a good predictor of how a justice will rule, either.
Tom Goldstein at SCOTUSBlog had a really detailed and interesting post in February examining the resumes of the various possible shortlist candidates and laying out the likelihood of a Kagan nomination. The discussion of Kagan is extremely lengthy and may be a little too inside baseball for non-lawyers, but it’s worth a read.
What’s the chance that Kagen will be the Left’s version of O’Conner - a level-headed semi moderate swing-vote whose opinions can be read by a non-lawyer like me?
Exactly. I wish he’d nominate a textualist, but I also wish I had a pony. Fact is, elections have consequences, and the American voting populace has handed Barack Obama four years of being able to appoint SC justices. So he should get the deference, and no Senator should stand in the way based on a difference in ideology.
Good luck with that. The cries of “Socialist! Radical left wing!” are inevitable, as soon as “they” can find something to sell that way.
Not the best choice, a hard lefty would be better if only to counterbalance the stream of hard righties that have been foisted upon us lately in the names of “non-activism” and something chimerical called “textualism”, though.
Not right before the midterms, it wouldn’t. Remember, SCOTUS justices sit for life, but the POTUS has to think about all his decisions’ consequences in the short run.
A few on the left have criticized her for having produced little scholarship and for an insufficient commitment to diversity in faculty hiring. Presumably those are just attempts to influence the President’s choice, though, and won’t be grounds for serious opposition from the left if she does get nominated.
It’s probably true that he’ll nominate Kagan, and it’s a damn shame. Liberals ought to be really, really upset, since it will move the court to the right. Why not Dianne Wood, or any of a number of candidates who actually have a track record, and whose track record doesn’t have a big question mark about where she or he falls on the political spectrum.
She’s a safe pick, and Goldstein is probably right that this is why she’ll get the nod in this political atmosphere. It would also have been a massive miscalculation to have a shortlist with four candidates and choose the most liberal. I know the Obama administration is more familiar with the Overton Window than that.
As a matter of qualifications, she seems qualified but not stellar. I’d like to see more of her writing. I thought her oral argument in Citizens United was pretty bad. In terms of her effect on the Court, her main strength is supposedly her ability to work across the aisle (across the bench?). But, I find the evidence of her bridge-building abilities to be pretty light. She went to a couple of Federalist Society meetings and hired some conservative professors? Big whoop. That doesn’t mean she’ll be able to build coalitions on legal issues with Justice Kennedy.
It would have been more comforting to think Obama would recognize that boldness is actually safer.
That makes no sense. The President has more ability than almost anyone to *move *the window (which has been a familiar concept for ages, so let’s not credit anyone for it, btw). A bold, liberal choice would have done that, and it something that badly needs doing, too.
But, I find the evidence of her bridge-building abilities to be pretty light.
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If that means constant trickles of surrender, then fuck it, the votes are what matter. If that means she can’t convince the rightie ideologues out of their predetermined decisions, then so what, probably nobody can.
Uh, that was my point. He sets the window, so that suggests he’s not picking the post liberal one of the four he shortlisted.
For a lot of cases, there are no stable coalitions, and even for the predictable 5-4 cases, justices get persuaded by their colleagues. It happens. And some people are more persuasive than others. If you want to win Kennedy’s vote, you don’t appoint a liberal Scalia.