# Obama nominates Elena Kagan for Supreme Court **URL:** \ **Category:** Great Debates\ **Created:** [May 7, 2010, 6:56pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669 "2010-05-07T18:56:22Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![Algorithm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/algorithm/32/12204_2.png) [@Algorithm](https://boards.straightdope.com/u/Algorithm)\ **Post date:** [May 11, 2010, 11:12pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/141 "2010-05-11T23:12:28Z")
> [@astorian](#): > > I find it hilarious that liberals who were prepared to use any and every means to gun down Robert Bork (successfully) and Clarence Thomas (unsuccessfully) are so concerned about the mean, nasty twicks the Republicans are liable to use against Kagan. Which liberals would those be? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2010, 12:44am UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/142 "2010-05-12T00:44:30Z")
> [@Hamlet](#): > > As to Kagan . . . she has taken an extreme position on the limits of executive power. Has she taken such a position? Are we talking about her views of the non-delegation doctrine? ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [May 12, 2010, 11:57am UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/143 "2010-05-12T11:57:52Z")
> [@Hamlet](#): > > Mo-nom-i-nee! > > Do doo do do doo! > > Mo-nom-i-nee > > Do doo do do > > Mo-nom-i-nee > > Do doo do do do. Do do do. Do do do do do do do do do do. I sing that tune to myself whenever I think of Menominee, MI. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 12, 2010, 2:41pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/144 "2010-05-12T14:41:18Z")
> [@Richard\_Parker](#): > > Has she taken such a position? Are we talking about her views of the non-delegation doctrine? Her (2001. pre-9/11) HLR Article, “Presidential Administration” is supposed to be a defense of the constitutionality of the shift of power to the executive. I haven’t had a chance to read it yet. It is available [here](http://www.harvardlawreview.org/issues/114/june01/Article_7038.php). ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [May 12, 2010, 4:27pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/145 "2010-05-12T16:27:03Z")
It seems to be a discussion of presidential authority over regulatory agencies. Not over Congress or the Supreme Court, but rather how Reagan put his stamp on offices that were under the executive branch already. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 12, 2010, 4:36pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/146 "2010-05-12T16:36:17Z")
> [@Richard\_Parker](#): > > Has she taken such a position? Are we talking about her views of the non-delegation doctrine? Sorry I’m late getting back. [Glenn Greenwald](http://www.salon.com/news/opinion/glenn_greenwald/index.html) and [Jonathon Turley](http://jonathanturley.org/2010/05/10/obama-to-nominate-elena-kagan/) raise the issues in better detail than I can at this time. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2010, 5:18pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/147 "2010-05-12T17:18:20Z")
Will there be any meaningful pushback from the Left over her? I just read Elie Mystal’s (Above the Law blogger) [account of his Civ Pro](http://abovethelaw.com/2010/05/elena-kagan-and-me-one-semester-of-civ-pro-with-the-new-scotus-nominee/) class with Professor Kagan. I like her more every day! ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 12, 2010, 5:28pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/148 "2010-05-12T17:28:41Z")
Depends. Who’s the “Left”? ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [May 12, 2010, 5:59pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/149 "2010-05-12T17:59:34Z")
> [@DoctorJ](#): > > [The American Family Association certainly isn’t dancing around it](http://action.afa.net/Blogs/BlogPost.aspx?id=2147494169): > > I think Senate Republicans will get around it by insisting that it’s not about her being a lesbian, but that she won’t answer questions about it. “We don’t care if she’s a lesbian! Really, we don’t! But why does she act like she has something to hide?” Wow, those guys are as obsessed with gay sex as George Rekers… ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [May 12, 2010, 6:06pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/150 "2010-05-12T18:06:09Z")
> [@ElvisL1ves](#): > > Bork’s opposition was based on his views and his record More to the point, the “views” in question were at least partially concerned with ability to do the job of applying the language of the Constitution. The notorious “ink blot” statement was (at best) a statement that if something in the Constitution is too hard to figure out then he’ll just ignore it or (at worst) a statement that if something in the Constitution leads to conclusions he dislikes then he’ll just ignore it. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 12, 2010, 6:08pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/151 "2010-05-12T18:08:12Z")
> [@Bricker](#): > > Will there be any meaningful pushback from the Left over her? Those law professors who question her commitment to diversity reiterated their concern, and I saw an article recently that the White House had released a statement aimed at smoothing things over with them. Andrew Sullivan has called upon her to make a statement addressing her sexuality, but I don’t know if he’s classifiable as left or right anymore. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2010, 6:21pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/152 "2010-05-12T18:21:06Z")
> [@Tom\_Tildrum](#): > > Andrew Sullivan has called upon her to make a statement addressing her sexuality, but I don’t know if he’s classifiable as left or right anymore. Well, yeah. How can we permit a person to occupy a seat on the nation’s highest court without knowing what she likes in bed? I hope she also clears up any controversy about her first experience masturbating and her position on sex during her period. The public has a right to know these things. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 12, 2010, 6:21pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/153 "2010-05-12T18:21:42Z")
> [@Bricker](#): > > Will there be any meaningful pushback from the Left over her? > > I just read Elie Mystal’s (Above the Law blogger) [account of his Civ Pro](http://abovethelaw.com/2010/05/elena-kagan-and-me-one-semester-of-civ-pro-with-the-new-scotus-nominee/) class with Professor Kagan. I like her more every day! Define “the Left”. I can’t see Obama making a “Harriet Meyers” mistake on the left. And she’s pretty obviously not a Harriet Meyers wrt her qualifications. So, I’m sure some on “the Left” will bitch and moan about not having someone further to “the Left” on the bench, but let them. Senate Democrats aren’t going to let them derail Obama’s pick for the SCOTUS. Providing there is no hidden scandal that surfaces, of course. > [@](#): > > Well, yeah. How can we permit a person to occupy a seat on the nation’s highest court without knowing what she likes in bed? I hope she also clears up any controversy about her first experience masturbating and her position on sex during her period. The public has a right to know these things. Since we don’t have a cite, it’s hard to say, but my guess is that AS is thinking that she should be bold and out herself for good of the Gay Community, not that Senators need to know about her sexual orientation. He’s not that stupid. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [May 12, 2010, 6:22pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/154 "2010-05-12T18:22:13Z")
> [@Hamlet](#): > > As to Kagan, I’m distressed that she has very little actual experience in the courtroom and that she has taken an extreme position on the limits of executive power. I don’t know enough about her yet, but those two things would make me very reluctant to support her. That and she has some strange ideas about the [First Amendment](http://boards.straightdope.com/sdmb/newreply.php?do=newreply&p=12442363) right of free speech. From United States verses Stevens: \*\* “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”\*\* According to the First Amendment Center: the Court ultimately rejected the government’s argument for creating a new unprotected category of speech, ruling April 20 that the law was unconstitutionally overbroad. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [May 12, 2010, 6:24pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/155 "2010-05-12T18:24:47Z")
And then he retracted the call. (Andrew Sullivan) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 12, 2010, 10:43pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/156 "2010-05-12T22:43:57Z")
> [@John\_Mace](#): > > Since we don’t have a cite, it’s hard to say, but my guess is that AS is thinking that she should be bold and out herself for good of the Gay Community, not that Senators need to know about her sexual orientation. He’s not that stupid. Looks like it’s a little bit of both. She should be proud, and the public has a right to know. [So Is She Gay?](http://andrewsullivan.theatlantic.com/the_daily_dish/2010/05/so-is-she-gay.html) ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 12, 2010, 11:52pm UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/157 "2010-05-12T23:52:54Z")
> [@Hamlet](#): > > Sorry I’m late getting back. [Glenn Greenwald](http://www.salon.com/news/opinion/glenn_greenwald/index.html) and [Jonathon Turley](http://jonathanturley.org/2010/05/10/obama-to-nominate-elena-kagan/) raise the issues in better detail than I can at this time. In the part Lessig commented on, I do think Greenwald seems to have either intentionally or unintentionally conflated Kagan’s work on executive authority over agencies with the executive power issues raised by the Bush Administration. Turley does a bit better, but still asks us to infer a lot from not very much evidence. Kagan thinks an AQ agent captured in the Phillipines has been captured on the battlefield. Ok. We might infer that this means she thinks the entire world is a battlefield in the war on terror, and therefore all such detainees are to be treated like battlefield captures. We might also guess that she thinks people captured on the battlefield are not entitled to things like habeas corpus. And while those are plausible inferences, I don’t think they quite get us to “she has taken an extreme position on the limits of executive power.” > [@villa](#): > > Her (2001. pre-9/11) HLR Article, “Presidential Administration” is supposed to be a defense of the constitutionality of the shift of power to the executive. I haven’t had a chance to read it yet. > > It is available [here](http://www.harvardlawreview.org/issues/114/june01/Article_7038.php). Her position on non-delegation doctrine and Presidential control of agencies is a strong one. No doubt. It is one of the very few things we really know about her personal views. And it has constitutional implications. But I think we have to be very careful not to conflate the issue of Presidential control over agencies with the issues of executive power raised by the Bush Administration. At least for me, when I hear “a defense of the constitutionality of the shift of power to the executive,” I don’t think non-delegation doctrine, I think [Youngstown](http://en.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer). > [@Magiver](#): > > That and she has some strange ideas about the [First Amendment](http://boards.straightdope.com/sdmb/newreply.php?do=newreply&p=12442363) right of free speech. He comments as SG are comments on behalf of her client’s position. They do not necessarily reflect her personal views. Eugene Volokh, a very well-known libertarian/conservative First Amendment scholar, writes of Kagan’s First Amendment scholarship: > [@](#): > > On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways. But I like them a lot. . . . They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. . . . This is legal scholarship as it should be, and as it too rarely is. > > ``` > * * * > > ``` > > My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters. [Link.](http://volokh.com/2010/05/10/elena-kagan-as-scholar/) ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [May 13, 2010, 12:18am UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/158 "2010-05-13T00:18:56Z")
> [@Richard\_Parker](#): > > I am stunned at how inept the RNC’s response has been so far. They had _years_ to prep for Kagan, who has been on the shortlist since inauguration, virtually. They certainly knew she was on the short list since Sotomayor’s nomination. And [this](http://www.americablog.com/2010/05/gop-attacks-kagan-by-defending-slavery.html) is among their central critiques: > > In their very first press [release](http://voices.washingtonpost.com/plum-line/2010/05/michael_steele_attacks_kagans.html) they ham-handedly deride her for thinking the original draft of the Constitution was defective? I mean, really? Their months of oppo research came up with the stunning revelation that Kagan recognizes the problem of slavery in American history? > > Even if they really meant to convey that Kagan was in favor of courts fixing the Constitution instead of amendments – their post hoc explanation for this argument – they couldn’t spare a few moments before issuing the longcoming press release to make sure they weren’t giving the wrong impression by asking “Does she still think the Constitution as originally drafted was defective?” > [@Diogenes\_the\_Cynic](#): > > Man, I _really_ hope they try pushing on this angle. Attacking her for agreeing with Thurgood Marshall that slavery was bad? They don’t usually leave their chins that wide open. That is unusually stupid even for them. This whole thing is hilarious. The GOP holds some positions I strongly disagree with, but I never thought they come out as pro-slavery. I guess Steele isn’t drawing a salary? I kid, I kid. I’m pretty sure they aren’t pro-slavery. But man, that’s showing some embarrassing ignorance of history and the Constitution. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [May 13, 2010, 4:35am UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/159 "2010-05-13T04:35:16Z")
> [@John\_Mace](#): > > Looks like it’s a little bit of both. She should be proud, and the public has a right to know. > > [So Is She Gay?](http://andrewsullivan.theatlantic.com/the_daily_dish/2010/05/so-is-she-gay.html) This isn’t conclusive proof, obviously, and I have no personal knowledge of Professor Kagan’s personal life. But for what it’s worth, many of her old friends are coming forward to state that she is NOT gay, and that she has regularly dated men in the past. [http://dyn.politico.com/printstory.cfm?uuid=8A882123-18FE-70B2-A8A8667A106A0FCC](http://dyn.politico.com/printstory.cfm?uuid=8A882123-18FE-70B2-A8A8667A106A0FCC) I know, I know… Cynthia Nixon dated men, too. That doesn’t prove she COULDN’T be gay. But indications are now that she is not. Which means Andrew Sullivan is still a dick. So what else is new? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 14, 2010, 2:40am UTC](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669/160 "2010-05-14T02:40:36Z")
I can’t do any better than these words: > [@](#): > > I don’t care whether they’re straight, gay, lesbian, bisexual, transgendered, queer, questioning, two-spirit, men-who-have-sex-with-men, womyn-loving-womyn, autosexual, or beyond categorization. I know it matters to some gay-rights activists who think every gay nominee is practically gay-bashing unless she starts her testimony with, “I am a gay American judicial nominee…” I know it matters to some anti-gay-rights activists who think every Kinsey 1 or above signs a secret pledge to promote the Protocols of the Elders of San Francisco. But I really, actually don’t care. > > In fact, if I think of it at all, I prefer to think of these folks as asexual. It helps me get on with the day. From [here](http://volokh.com/2010/05/12/unless-the-justices-start-skinny-dipping-in-the-cert-pool/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+volokh%2Fmainfeed+%28The+Volokh+Conspiracy%29&utm_content=Bloglines). [Previous page](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669.md?page=7) [Next page](https://boards.straightdope.com/t/obama-nominates-elena-kagan-for-supreme-court/538669.md?page=9)