Kagan, Obama, and the Uses of Distortion
Above the Fold
President Barack Obama has nominated Solicitor General Elena Kagan to be the 112th justice of the United States Supreme Court. If the Senate confirms her–which today seems highly likely–she will also be the third woman, the third Jew, and the fourth New Yorker among the current justices.
Kagan is acknowledged by nearly all sentient beings to be a brilliant lawyer, an extraordinary teacher, an impressive scholar, one of the most successful deans in the history of the Harvard Law School, and an extremely competent solicitor general.
Presidents naturally gravitate toward people whom they fell comfortable with; and Obama obviously sees a great deal of himself in a highly intelligent, fiercely disciplined, and unabashedly ambitious lawyer who he has known since they were colleagues together at the University of Chicago, almost twenty years ago.
Barack was famous for bringing harmony to the Harvard Law Review; Elena is famous for bringing harmony to the Harvard Law School.
New York Times columnist David Brooks concedes that Kagan is, “smart, deft and friendly” and “a superb teacher” who “has the ability to process many points of view and to mediate between different factions.” But, according to Brooks, she is also “apparently prudential, deliberate and cautious.” And “strategic.”
Good god! A prudential, deliberate and cautious Supreme Court Justice. What could be more dangerous than that? Apparently not much, in the mind of the Times columnist, because he concludes his analysis by stating that “her willingness to suppress so much of her mind for the sake of her career, [is] kind of disturbing.”
In other words, because she has apparently wanted to be a Supreme Court Justice for a really long time (she’s already wearing robes in the photo of her in the Hunter College High School yearbook), she realized that her chances of reaching that goal would be greatly enhanced if there weren’t a hundred published opinions the Senate could grill her about when she was nominated. So she has been relatively reluctant to express herself.
This reticence has been twisted by Brooks and others into proof that she has never had any strong opinions (and actually “suppressed” her mind.) Then, over on the left, the usually estimable Glenn Greenwald, sees “disturbing risks posed by Kagan’s strange silence on most key legal questions,” as well as “serious red flags raised by what little there is to examine in her record.” Greenwald has also asserted that Kagan’s appointment “would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor)”–a statement for which FCP frankly sees no convincing evidence whatsoever.
What we actually have here are knee-jerk conservatives like Brooks, who are eager to invent any impediment they can to prevent Kagan’s confirmation, and knee-jerk liberals like Greenwald (who FCP usually admires), who may be making Kagan a vessel for all of their other disappointments with Obama, from his failure to get a public option included in the health care reform bill, to his embrace of some of the more egregious elements of George Bush’s anti-terrorism policies.
On Cable TV, of course, the reductum ad absurdum is already everywhere, with great Americans like Bay Buchanan regurgitating the right-wing talking-point du jour, which is that Kagan is exactly like Harriet Myers–“except for the Ivy League part.”
Jon Stewart explained what Buchanan said really meant: the two women are exactly the same “except for the dumb part.” Stewart added Tuesday night, “that’s just like saying the only difference between me and Michael Jordan is athletic ability.”
Stewart also boiled down soundbites from everyone from John Heilemann to Diane Sawyer into just two sentences: “She’s a reckless blank entity with no paper trail” and “She’s a short, chimney-smoking, beer-guzzling poker player.”
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|Release the Kagan|
Of course, everything is relative, which means that some paperless trails are a good deal less paperless than others. So while it is true that Kagan has only published a handful of scholarly articles, it is also true that her article on Presidential Administration is 67,000 words long (How’s that for “mind suppression,” Mr. Brooks?)
The heart of Kagan’s argument in that article is that Bill Clinton “made the regulatory activity of the executive branch agencies into an extension of his own policy and political agenda. He did so, primarily, by exercising directive authority over these agencies and asserting personal ownership of their regulatory activity–demonstrating in the process, against conventional wisdom, that enhanced presidential control over administration can serve pro-regulatory objectives.”
Enhancing presidential control to serve pro-regulatory objectives strikes FCP as a firmly progressive position, and even Greenwald concedes that “what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.”
But then, in the same post, Greenwald goes on to quote approvingly from Neal Katyal, (currently Kagan’s deputy) who, Greenwald wrote, “emphatically criticized Kagan’s theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures.” A link which FCP frankly finds preposterous.
Harper’s Scott Horton has been much more sensible than everyone else on the left about Kagan’s nomination. Horton has been just as vitriolic as Greenwald about Obama’s embrace of some elements of his predecessor’s anti-terrorism policies. And Horton is not unsympathetic to Greenwald’s argument that “Obama has missed the opportunity to appoint a worthy successor to Stevens to lead the fight against rampaging executive power.”
However, Horton also describes Kagan’s lengthy article on presidential administration as “a beautiful, extremely perceptive work, closely observed, brilliantly reasoned, and cautious. In it, Kagan notes the increase of presidential power as Congress builds the administrative and regulatory state. The powers that Congress vests in regulatory agencies are necessarily assumed and controlled by the president. Kagan writes as a detached observer, yet there is much to suggest her admiration for the evolution of the strong presidency in the period after World War II.”
Then Horton gets to the heart of the matter about Kagan’s nominaton, and in the process ends up sounding more sensible than anyone else FCP has read on this subject so far:
The test is not whether Elena Kagan is the candidate each critic would have picked but whether she has the essential qualifications to be a justice of the Supreme Court and if so, whether she has any views on constitutional doctrine that are so far from the mainstream that they are disqualifying. Kagan will clearly pass this test, and civil libertarians need to get over their distrust of her capacity to listen to and understand conservatives with whom they disagree. That’s an admirable quality for a judge, and it will serve Kagan well on the Supreme Court.
That is also a quality which may enable Kagan to get Justice Anthony Kennedy to vote with the liberal bloc on the Court at least as often as Justice Stevens did. Since Kennedy’s swing vote is the only thing that presently makes progressive decisions possible, that capacity is more important to the future direction of the Court than anything else.
Special thanks to FCP contributor SRS.
Update: As the estimable James Barron points out on the front page of Wednesday’s New York Times, if Kagan is confirmed, Staten Island will be the only one of New York City’s five boroughs without its own personal representative on the high court. “Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx,’” Joan Biskupic told The Times.