President Barack Obama has nominated Elena Kagan, the solicitor general of the United States, to the seat now held by Associate Justice John Paul Stevens, a liberal stalwart who is retiring after 35 years on the Supreme Court. In an interesting development, when it became clear that Kagan had the inside track for the nomination, gay and liberal bloggers lauded Obama’s impending selection of the first gay nominee on the High Court.
The Obama administration then went into attack mode, calling “rumors” that Elena Kagan was gay were part of a “right-wing smear campaign.” The Obama spin operation targeted Ben Domenech, the conservative editor of The New Ledger, for his blog post “Obama’s Top Ten Supreme Court Picks.”
What was Domenech’s offense? He wrote that the Kagan nomination “would please much of Obama’s base. I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles” (Italics are the author’s). Subsequently, he wrote an “apology” to Kagan in The Huffington Post.
It was a bruising battle of reverse political correctness. It is highly interesting as Kagan is a supporter of limits on free speech in the matter of political correctness, which is indicative that she is no civil libertarian. She may actually be a closet conservative. Her nomination is part of a course being navigated by the Obama administration that increasingly plots it towards a position on the center-right.
If the Bill Clinton administration is any clue, Obama is tacking to the right in order to bolster his chances at re-election. Elena Kagan served in the Clinton Justice Department and is strongly backed by the former President.
“Curiouser & Curiouser”
“`Curiouser and curiouser!’ cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English)…”
–Lewis Carroll, Alice’s Adventures in Wonderland
How did the openly gay former dean of Harvard Law School morph into a heterosexual? One has to understand the Through the Looking Glass world of the Supreme Court nomination process since the failed nomination of Robert Bork. A former solicitor general and acting attorney general who sat on the District of Columbia Circuit Court of Appeals, Ronald Reagan nominated Bork to the High Court in 1987. He had a strong, conservative record and well-developed conservative legal philosophy that he deftly defended before the Senate Judiciary Committee.
Liberals marshaled by Sen. Edward Kennedy pounced on him, denouncing him as a reactionary who would roll back civil rights. He was given a thumbs down by the Senate Judiciary Committee, then was voted down by the Senate.
The defeat of Bork gave rise to the verb, “to bork.” To bork a nominee is to savage him as the Senate Democrats, led by Teddy Kennedy, did to Robert Bork.
Since the original borking of Bork, the trend has been to nominate “stealth” candidates without long judicial records or developed political philosophies. The most striking example is the nomination of John G. Roberts, first as an Associate Justice then, with the death of Chief Justice William Rehnquist, to the top post. Roberts did not have a long record, or a judicial philosophy, and he was young, only 50 years old, when George W. Bush put him on the High Court.
Youth is a consideration, a political consideration, as it was for George H.W. Bush’s nomination of Clarence Thomas, as it is felt that these conservatives will manage to dominate the court for a long time. An older justice potentially would spend less time on the bench, and the seat might then be filled by the other political party, if it is in power.
That Elena Kagan is only 50 years old is held as a plus, as she could put in as much as 40 years on the High Court, if she lives to the age of the man she will replace, John Paul Stevens, who is 90.
The most curious development in the modern Supreme Court Justice vetting process, though, is to have men and women like Roberts (who was a judge on the D.C. Circuit Court of Appeals) essentially lie before the Senate Judiciary Committee, denying that they have positions on such issues as Roe v. Wade when, in fact, everyone knows their position.
The truthiness of candidates is not an issue in this ritual lorded over by the Red Queen that is the Senate Judiciary Committee. When one thinks of judges engaging in little white lies, the layman might be shocked. But, after all, it is the layman, not the lawyer, who is asked to “Tell the truth, the whole truth, and nothing but the truth,” when sworn in as a witness, not the lawyer.
That a lawyer (and a judge or a senator, many of whom are attorneys) is, in actuality, a kind of professional liar, is just part of the game and discounted.
The putting of Elena Kagan back in the closet is the most curious manifestation of this Through the Looking Glass/Alice in Wonderland world of unreality that the Supreme Court nomination and confirmation process has become.
One would wonder what Barack Obama gains from keeping Kagan in the cupboard. Key Republican senators have indicated that a gay candidate for the Senate should not be rejected on the basis of their sexual/affectional preference. So what gives?
Could it be that Barack Obama is offering cover to the Senate Republicans, who have signaled that they will not launch a filibuster against Kagan’s nomination? By not antagonizing the hard right by presenting Elena Kagan as openly gay, Obama gives the GOP breathing room. The red meat-eaters or the reactionary right already have forced moderate Charlie Crist out of the Republican Party and have ensured that the reliably conservative Republican senator from Utah, Bob Bennett, will not be part of the 112th Congress come 2011.
By presenting Elena Kagan as heterosexual, Obama will not rile up the hard-right, anti-gay reactionaries, allowing a handful of Republican moderates to prevent a filibuster. But what does it say of Kagan that the Republicans do not oppose her?
A close look at what little record there is indicates that Kagan might be a conservative of the Felix Frankfurter stripe (that is to say, conservative not reactionary, and an advocate of judicial restraint), whose ideas on The Executive are in line with the Bush 43 Administration’s idea of the “unitary executive.”
Through the Looking Glass
Personally, I am opposed to Barack Obama’s nomination of Elena Kagan to the Supreme Court because I am a firm believer in the free speech rights guaranteed by the First Amendment, and because I am opposed to an expansive view of Executive Power, including the broad assertion of the state secrets privilege.
I also do not believe that Kagan has the experience or the record warranting her elevation to the High Court. Kagan has never served as a judge, has limited real-world experience as a practicing attorney, and has a remarkably sparse academic record when it comes to publishing law review articles.
Fundamentally, I am opposed to her as she is a “pragmatist,” which is to say she is not a progressive, and not even a reliable “liberal.” Washington Post columnist E.J. Dionne, Jr. thinks of this as a positive.
Dionne, who is not a law school graduate, let alone ever practiced the law, wrote of her nomination: “Precisely because Kagan is not seen as an ideologue and has a long history of cordial and thoughtful intellectual and personal relationships with those to her right, she is the kind of person who can make the necessary case for judicial restraint.”
Judicial restraint? Obama is putting a “pragmatist” with good relations to conservatives on the Court to act as an ambassador to the right wing conservatives that dominate the Court? It doesn’t make sense. What common ground is she going to have with the hard right reactionaries like Antonin Scalia, who apparently is fond of her. (She has argued six cases before the Supreme Court as Solicitor General.)
Would Kagan be able to rally the “swing vote” on the Court, the conservative Anthony Kennedy, over to the left? Would an experienced jurist who will be 74 years old when Kagan takes her seat listen to the blandishments of someone a generation younger, with no judicial experience at all?
This is highly unlikely. It took several years for William Brennan to establish himself as a major voice on the Warren Court. Wouldn’t putting a committed liberal powerhouse on the bench to serve as an intellectual counterweight to Scalia be the logical answer, to create the conditions for a new, liberal consensus in the future? Elena Kagan is not it.
So, how are we to understand the Kagan nomination, the nomination of a centrist who may turn out to be a conservative to the High Court by a President who campaigned for the nomination and Presidency as a liberal?
President Obama, in preparing his nomination of a centrist (if not closet conservative) candidate to the High Court, made an attack on judicial activism, scoring the liberal Warren Court for this sin, that of acting as a super-legislature. This was part of his taking the conservative Roberts Court to task for its brand of conservative judicial activism.
This is another “Curiouser and curiouser” development, as but for the judicial activism of the Warren Court and it acting as a super-legislature in the area of civil rights (which Congress had ignored for a century and which previous High Courts had abridged), the African American Barack Obama wouldn’t be President of the United States! All Supreme Courts since John Marshall have practiced judicial activism and have reigned as super-legislatures, except they have done it typically for conservative ends.
So how do we understand this nomination? Obama’s attack on the Warren Court combined with his embargo of news that Elena Kagan is gay, which was buttressed with attacks on bloggers who heralded the appointment of a gay to the High Court as a positive development (which it would have been), means that we are firmly in the Cloud Cuckoo Land that is Supreme Court politics. But why?
Barack Obama apparently doesn’t want a fight with the Republican Party over a liberal, progressive Supreme Court nominee. The Republicans are not going to vigorously oppose this nomination because she is a safe, reliable “pragmatist.”
From 2005 to 2008, Kagan served as a legal adviser to the Goldman Sachs Global Markets Institute’s Research Advisory Council, for which she received $10,000 in remuneration.
Wall St. can breathe a sigh of relief with Kagan on the Court.
The Case Against Kagan
Too many hacks have been put in the Supreme Court over the years, for political considerations. Despite her distinguished academic background, Elena Kagan likely would prove one of them. She does not have a distinguished record of scholarship.
When I read about her background at Harvard, where she not only taught law but was Dean of the Law School, I hear Woody Allen, as Alvy Singer, in Annie Hall, countering the information gleaned from a passerby about Tony Lacy, the rock producer played by Paul Simon who has stolen Annie’s heart, that he is a graduate of Harvard University.
“Hey, Harvard makes mistakes too! Kissinger taught there!”
A more serious take on the limits of the Ivory Tower mentality is revealed in an anecdote from David Laberstam’s The Best & The Brightest, a history of the Executive level decision making that brought America the Vietnam War.
According to New York Times columnist Frank Rich in a December 2008 column on the Obama Cabinet, “Halberstam wrote that his favorite passage in his book was the one where [Vice President Lyndon] Johnson, after his first Kennedy cabinet meeting, raved to his mentor, the speaker of the House, Sam Rayburn, about all the president’s brilliant men. ‘You may be right, and they may be every bit as intelligent as you say,’ Rayburn responded, ‘but I’d feel a whole lot better about them if just one of them had run for sheriff once.'”
Rich went on to inform his readers that, “Halberstam loved that story because it underlined the weakness of the Kennedy team: ‘the difference between intelligence and wisdom, between the abstract quickness and verbal facility which the team exuded, and true wisdom, which is the product of hard-won, often bitter experience.'”
Just as Barack Obama, who won the Democratic Presidential nomination by positioning himself as the “Peace” and “Anti-War” candidate and then did an abrupt 180 degree about face and kept President George W. Bush’s Defense Secretary and the Republican defense establishment in power, his nomination of Elena Kagan for the Supreme Court means the spirit of George W. Bush lives on.
As Stuart Taylor, Jr. points out in The Atlantic, putting Elena Kagan on the Supreme Court makes it a more conservative court. That is because the man she is replacing, John Paul Stevens, “led the Court’s assault on the Bush Administration’s sweeping claims of presidential and congressional power to wage war against terrorism.”
As Solicitor General, she attacked the Court’s holding the President to the rule of the law in the fight against terrorism, as articulated by Stevens, the man she would replace.
These are major issues that effect our civil liberties, as it was through a broad interpretation of Executive authority that the Bush 43 Administration attempted to thwart the Constitution and impose such policies as warrantless wiretapping, all in the name of combating terror.
The Spirit of George W. Bush
Elena Kagan was not even a good solicitor general. During the 2009 confirmation hearings on her nomination as Solicitor General, she was criticized for her lack of experience. It was held against her that she had never argued a case before the Supreme Court, which is the Solicitor General’s function.
“When you get up to that podium at the Supreme Court,” Kagan said to rebut the experience issue, “the question is much less how many times you have been there before than what do you bring up with you. And I think I bring up some of the right things.”
But the fact is, she brought the wrong things with her.
In oral arguments before the Supreme Court, Kagan supported the expansion of executive authority by defending a criminal ban on any material support to organizations suspected of terrorism, including a ban on any advice given to such organizations. When it was suggested that extending her logic would result in locking up her opposing counsel, she had no explanation for her position.
This is not just bad policy, this is bad lawyering. Her philosophy, as articulated as Solicitor General, is bad, too.
Kagan has advocated and defended the extension of the state secrets privilege as well as detentions and military tribunals for enemy combatants. That’s in keeping with he spirit of George W. Bush.
More importantly, Kagan has a poor record on the First Amendment. At Harvard, she was for regulating speech that she doesn’t like and developed balancing tests to weigh the value of speech in a purely subjective fashion. This is political correctness rearing its head in the form of censorship.
Now, some may argue, and correctly, that as Solicitor General, she is parroting the philosophy of her client, who is the President of the United States. But significantly, Kagan loves to quote Felix Frankfurter, the former “liberal” Harvard Law School professor who, once put on the High Court, became a dyed-in-the-wool conservative! (This is hardly surprising as he was one of the more conservative members of FDR’s brain trust.)
Frankfuter opposed the liberal agenda of the late Roosevelt Court headed by Chief Justice Harlan Fiske Stone and that of the more liberal Warren Court, as he was against judicial activism. It was liberal judicial activism of the Stone Court that broadened civil and constitutional rights in this country, and protected the progressive social legislation of FDR from being struck down, as it was by the Evans Court during Roosevelt’s first administration.
It was the liberal judicial activism of the Warren Court that took the moribund 14th Amendment, which had been turned into an aegis by which progressive economic legislation was struck down in the name of protecting the rights of corporations by conservative activist courts, and used it for the purpose it was intended: To protect the rights of African Americans. The 14th Amendment was also used to guarantee and further broaden the civil and constitutional rights of all Americans, such as free speech and privacy.
It was under the Warren Court-articulated right to privacy that a woman’s right to an abortion was extended. Abortion, the ultimate litmus test of a Supreme Court nominee for both liberal and conservative, Democrat and Republican Presidents and Senators, was the result of judicial activism.
On the issue of judicial activism, President Obama was dead wrong. And bewilderingly hypocritical.
With this background, one would not be shocked if Elena Kagan, once on the Court, turned out — like Felix Frankfurter — to be fundamentally a conservative. This is not why Barack Obama won the Democratic nomination, and the Presidency: to put conservatives on the Supreme Court, so as to avoid a bruising battle before the 2010 Congressional elections.
If there is disaffection among hard-core liberals like Bernie Sanders, the socialist senator from Vermont, and a solid block of Republicans against her (a wild card: Democrat Arlen Specter, when he was a Republican last year, voted against her nomination as Solicitor General), she may prove to be another Harriet Myers. Her nomination might go down in flames.
Thus, the gay issue was kept out of the matrix.
A far gutsier choice for Supreme Court would have been former Yale Law School Dean Harold Hongju Koh, who would have become the first Asian on the High Court. Currently State Department Legal Adviser, where he essentially is Secretary of State Hillary Clinton’s lawyer, the brilliant Koh is a hard-core Democrat, and highly partisan, unlike Elena Kagan, who went out her way to court conservatives while dean of Harvard Law.
A prominent supporter of human rights and civil rights, Harold Koh would be an ideal candidate of the Democratic Presidential candidate Barack Obama, who ran as a liberal, but has governed as a Clintonian centrist, skewed center-right. Trying to get Koh on the Supremes would court a fight with the Senate Republicans, something Obama is shying away from.
Three Questions
If I were a U.S. Senator, the three questions I would ask Elena Kagan are:
What is your stand on the unitary presidency? (Does the executive power, as vested by the Constitution in the Office of the President of the United States, trump Congress in the oversight of Executive Branch departments?)
What is your stand on the state secrets privilege? (A related question would be does she think that national security establishment whistleblowers should have rights to reveal wrong-doing.)
What is the proper limits to free speech? (Are there any beyond those articulated in Brandenburg v. Ohio, which bans only speech that is an imminent incitement to lawless action?)
Sources
The Atlantic, “Kagan May Mean a More Conservative Court”
CBS News, “Elena Kagan’s Goldman Sachs ‘Connection'”
Faith & Reason, “Kagan, Judaism and the Bible: ‘Justice, justice shall you pursue'”
The Huffington Post, “The White House, Elena Kagan, and Me”, by Ben Domenech
The New Ledger, “Obama’s Top Ten Supreme Court Picks,” by Ben Domenech
The New York Times, “Obama Picks Kagan as Justice Nominee”; “The Brightest Are Not Always the Best” by Frank Rich
TIME Magazine, “Driving the Supreme Court Nomination: Can Kagan Win Over Kennedy?”
Washington Post, “The advantage of Elena Kagan”, by E.J. Dionne, Jr.
USA Today, “Other views on the Supreme Court: ‘A scant record'”
