Solicitor General Elena Kagan will be nominated Monday to the Supreme Court by President Barack Obama, a person familiar with the president's thinking says, positioning the high court to have three women justices for the first time.
Obama plans to announce his choice at 10 a.m. in the East Room of the White House. The source spoke on condition of anonymity because the decision, which came after a monthlong search, had not been made public.
Just look at all the fawning.
Kagan is known as sharp and politically savvy and has enjoyed a blazing legal career. ...
What the president gets from Kagan, 50, is a terribly bright, progressive judicial voice without a great deal of liberal baggage for critics to sort though. The White House also will get someone who has a long-held inside-the-beltway reputation for being some sort of "consensus-builder."
This comes a little closer to my POV:
SCOTUSblog’s Tom Goldstein, who has been supportive of Kagan, describes her as “extraordinarily – almost artistically – careful” about her views of constitutional law, managing to avoid taking any definitive positions even in conversation. The simple, empirical fact is that there’s very little evidence available for the public to understand her outlook on the Constitution. Should Obama choose Kagan to replace Justice John Paul Stevens, she can remain a blank slate because the mechanism for public investigation of a nominee – the confirmation hearing – has been reduced to a venue for absurdist performance art.
But Glenn Greenwald as usual nails it, with seven salient points about why this is a bad pick ...
1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan's record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): "Blank Slate."
(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan's relationship to Goldman Sachs. That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street. The Huffington Post's Sam Stein has more on the Kagan/Goldman Sachs connection.
(3) Following up on the article published yesterday in Salon by four minority law professors -- which condemned Kagan's record on diversity issues as "shocking" and "indefensible for the 21st Century" -- Law Professor Darren Hutchinson of American University School of Law today writes that Kagan's record is "abysmal."
There's more so go read it. But this is the clincher.
(7) Perhaps most revealing of all: a new article in The Daily Caller reports on growing criticisms of Kagan among "liberal legal scholars and experts" (with a focus on the work I've been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows: "The reality is that Democrats, including liberals, will accept and push whomever Obama picks." Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality: "Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama."
Just think about what that means. If the choice is Kagan, you'll have huge numbers of Democrats and progressives running around saying, in essence: "I have no idea what Kagan thinks or believes about virtually anything, and it's quite possible she'll move the Court to the Right, but I support her nomination and think Obama made a great choice." In other words, according to Chemerinksy and Yglesias, progressives will view Obama's choice as a good one by virtue of the fact that it's Obama choice. Isn't that a pure embodiment of mindless tribalism and authoritarianism? Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush's selection of Harriet Miers to what progressives are almost certain to do with Obama's selection of someone who is, at best, an absolute blank slate.
One of the very first non-FISA posts I ever wrote that received substantial attention (uniformly favorable attention from progressives) was this post, from February, 2006, about the cult of personality that subsumed the Right during the Bush era. The central point was that conservatives supported anything and everything George Bush did, regardless of how much it comported with their alleged beliefs and convictions, because loyalty to him and their Party, along with a desire to keep Republicans in power, subordinated any actual beliefs. Even Bill Kristol -- in a 2006 New York Times article describing how Bruce Bartlett had been ex-communicated from the conservative movement for excessively criticizing George Bush -- admitted that personal allegiance to Bush outweighed conservative principles in the first term and that "Bush was the movement and the cause."
To say that "Democrats, including liberals, will accept and push whomever Obama picks," based on the rationale that "Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama" -- even if they know nothing about her, even if she might move the Court to the Right -- seems to me to be an exact replica of what I described four years ago.
This woman has the potential of being what Harry Blackmun was to Richard Nixon, what David Souter was to George H. W. Bush, what John Paul Stevens was to Gerald Ford. And that not coming to pass over the years is the best we progressives can hope for.
