The case against Elena Kagan

[Jefferson23]

Tuesday, Apr 13, 2010

By Glenn Greenwald


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).


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 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.

Kagan's lack of a record

remainder in full: http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan/index.html

[pscot]

If President Obama takes the court to the right

he will lose me entirely. Although I've been critical of some of his actions, I generally support him and think he's been doing pretty well in a tough situation. But a weak, conservative appointment to the one liberal seat on top of my other concerns, would be a deal breaker.

[Jefferson23]

2. We can try and let him know our concerns, and let our elected reps know too, asap.

[pscot]

1. Deleted brain lock

[Jefferson23]

3. Interview with Greenwald on Democracy Now:

Glenn Greenwald on Why Elena Kagan Would Shift the Supreme Court to the Right and the Death of Dawn Johnsen’s OLC Nomination

snip* AMY GOODMAN: Glenn Greenwald, I’d like you now to go through talking about who—how you evaluate some of these candidates. Your latest blog is called “The Case Against Elena Kagan” at Salon.com. Why?


GLENN GREENWALD: I think the starting point has to be that the three nominees, likely nominees, identified correctly by Nan Aron as the frontrunners—Elena Kagan, Judge Garland and Judge Wood—of the three, none of them would be more progressive than Judge Stevens. I don’t think there’s a single person anywhere who would suggest that that’s the case. There are a couple of possibilities, like Harold Koh and Pamela Karlan, whom Nan also discussed, who very well may be as progressive as, if not more progressive than, Justice Stevens, but most people believe that they’re not really viable choices. But the three frontrunners certainly are not more progressive than Judge Stevens.


And I think it’s very clear that two of them, Elena Kagan and Judge Garland, would actually be more conservative, perhaps much more conservative, than Justice Stevens would be. So what we’re talking about, if either of those two individuals are chosen—Elena Kagan, the current Solicitor General, or Judge Garland—what you’re really talking about is the effect of moving the Supreme Court to the right. Remember, this is a Supreme Court that’s already dominated by conservatives. You have Justices Scalia, Thomas, Roberts and Alito forming a basically impenetrable right-wing bloc, with Justice Kennedy, who was a Reagan appointee, frequently joining them.


AMY GOODMAN: We’re talking to Glenn Greenwald, but we are talking by video stream, so sometimes it just gets caught up for a second.


Glenn, keep going.


GLENN GREENWALD: So we’re talking about the very real possibility here that President Obama, a Democratic president who progressives worked very hard to elect, with a Senate of fifty-nine Democrats, could actually move the Court to the right.

remainder here: http://www.democracynow.org/2010/4/13/glenn_greenwald_on_why_elena_kagan

[BrklynLiberal]

4. Gawd! Hard to believe that anything could make me detest LIEberman more than I already did.

This article succeeded. Actually make me want to puke. I CANNOT WAIT UNTIL THAT MAN IS OUT ON HIS ASS!!!