It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements. Tom Goldstein of SCOTUSblog has declared her "the prohibitive front-runner" and predicts: "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice." The New Yorker's Jeffrey Toobin made the same prediction.
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).
This is bad news for us progressives. The more I learn, the more Glenn Greenwald is making me nauseous.
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.
More Greenwald, in an interview with Amy Goodman of Democracy Now! ...
Elena Kagan actually has very little record to speak of that would enable anybody to know where it is that she falls on the political spectrum.
And I think that issue, the fact that she has so little record, is disturbing in and of itself. I mean, why would progressives or Democrats, with an opportunity to replace somebody like Justice Stevens, possibly want to take a huge risk of appointing somebody to the Court whose judicial philosophy can’t really be discerned, because she’s spoken out almost never on most of the key constitutional and legal questions of the day? And that even includes, over the last decade, when there was an assault on the Constitution and the rule of law by the George Bush administration, and virtually every law professor, academician, anyone of note in the legal community, spoke out against what it was that Bush and Cheney were doing. She was completely silent. You can’t find a single utterance from her, in writing or orally, where she expressed a view one way or the other on the radical executive power claims of the Bush administration.
And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.
Well, we know that this administration loves the idea of pleasing conservatives, and anybody who is pleasing to conservatives is somebody who is much more attractive as a political appointee than somebody who is perceived as liked by the left. ...
So, Elena Kagan is perceived as someone who is very good at accommodating right-wing perspectives. She did when she was the dean of Harvard Law School. And at her confirmation hearing for Solicitor General, Republicans couldn’t praise her lavishly enough. I mean, she had a colloquy with Lindsey Graham, the Republican senator from South Carolina, where they were in complete agreement on virtually every issue involving terrorism and executive power. And even the furthest right-wing polemicist, like Bill Kristol and Ed Whelan, who currently writes for National Review and was a lawyer in Bush’s Office of Legal Counsel, have praised her quite, quite emphatically as someone whose views on national security and terrorism and civil liberties they find quite palatable.
... And simply politically, it’s easier to get confirmed someone who’s perceived as being, and who is, a moderate, or even a conservative, than it is to get someone confirmed who is a liberal.
Senate Republicans have already set this one up. They'll fight anyone who is perceived by them as 'unacceptable'. Obama has no stomach for another fight in the Senate and neither does Harry Reid. (Although this is welcome news.)
Personally I'm going to steel myself for yet another unpalatable Obama decision.