Elena Kagan’s a bit of a blank slate. Larry Lessig thinks she’ll be a powerful negotiator and advocate who can bring different groups together, plus they shared an opera subscription. Glenn Greenwald thinks we could do a hell of a lot better and that progressives need to make this our Harriet Miers moment. (Kagan, of course, is slightly more qualified than Miers, who was just on the faculty at Harvard, not the Dean.)
All of this is dwarfed by burning question that will dominate all known forms of media for the next few weeks: is Kagan teh ghey?
Jason Bylinowski
is Kagan teh ghey?
Yhes how who cahres?
4tehlulz
Anyone want to start a pool about who on the Judiciary Committee will bring up teh ghey?
I’ll take Lindsay, for maximum irony.
henqiguai
Two questions I got —
1. I saw all the emoting, over the weekend, on BJ about Kagan being the nominee. Did I miss the pre-announcement ?
2. Are the objections to her, assuming Kagan actually is the nominee, based upon anything other than ‘she (probably) won’t bring the uber progressives ponies and flowers’ ?
Seriously, I haven’t been able to figure out all the heart burn.
Why oh why
@henqiguai:
Alito and Roberts are bringing the uber conservatives ponies and flowers.
mistermix
@4tehlulz: Sessions, for maximum white Southern male assholery.
BR
@henqiguai:
It’s because Greenwald—arbiter of what is progressive and not—said Wood is awesome and Kagan sucks, and therefore, that is the gospel.
BR
@mistermix:
I really wish someone would ask Sessions: “Sen. Sessions, could you tell us the last time you called a black man ‘boy’?”
Michael
I’m just in love with the idea of wingnut heads (plus Scalia) exploding over the notion of a New York Jewish lesbian.
That alone is worth the nomination.
WereBear
OT, but this permeable oil stocking idea is the shiznit, and needs to be talked up.
mistermix
@BR: Glenn makes a couple of good points in his posts about Kagan (for example, she has almost no experience in the courtroom), but the whole “Harriet Miers” charge is such an overblown piece of horseshit.
Kagan’s obviously brilliant: Dean of Harvard Law, on the faculty at Chicago. Miers was probably a decent real-estate lawyer in Dallas, if that. There’s no comparison on the key reason that Miers’ nomination was an insult to the Supreme Court. Bush was just saying: fuck y’all, one lawyer (pronounced “liar”) is as good as the next.
John Cole
All I care is that she isn’t Catholic.
dmsilev
How long until the cry of “Why does Obama hate white men” ring out across the land?
dms
Hal
Kagan’s biggest problem seems to be that she’s not Diane Wood.
The funny thing is, I keep reading at Salon and Huffpo that Obama is really a super duper conservative and this nomination proves it, but why would a conservative nominate a gay justice?
And with Greenwald, for all the talk of sycophants, how many people commenting on Huffpo and Salon don’t like Kagan because Greenwald doesn’t like Kagan?
JD Rhoades
I just read the NYT bio on Kagan and I predict the big issue will become the paper she wrote about the decline of the US Soshulist movement:
In 153 pages, the paper examines why, despite the rise of the labor movement, the S______ Party lost political traction in the United States — a loss that she attributed to fissures and feuding within the movement. “The story is a sad but also a chastening one for those who, more than half a century after s_____’s decline, still wish to change America,” she wrote.
The screaming will be all about OMG BARRY HUSSEIN HAS NOMINATED A SOSHULIST!’
The question will be “why does this New York soshulist you think the country needs changing because all good right thinking Americans know we are the greatest country in the world, etc.”
Bookmark it.
John W.
If you try to go all Harriet Miers on Kagan, you’re essentially conceding that Harold Koh is unqualified.
And that would make me very sad.
If you elect a community organizer as President, you’re going to get judges who try to bring people together but are disappointingly moderate.
Kagan wouldn’t be my choice, but there’s a reason everyone thought she would be the choice, and it wasn’t service to teh Goldman Sachs.
cat48
NYT bio made me kinda like her……like that Marshall nicknamed her “shorty.”
Xenos
J.A.F. Rusty Shackleford
Sometimes I would like to see Glenn Greenwald flung at a high velocity towards Digby, who would also be flung at a high velocity. I truly believe the character of Debbie Downer is a composite of Greenwald and Digby.
When I was a kid Greenwald and Digby were what we referred to as “black clouds”. It’s a sunny day here in Chicago this morning but I know the black clouds will be rolling in in no time.
John W.
The one thing, though, even more than Sotomayor: there’s risk in Kagan.
Obama is going to own her record way more than Sotomayor’s. Everyone on the left and middle more or less liked her. Kagan is a gamble – Hope you know what you’re doing Barack.
If Obama is not right,, he should prepare for a lifetime of “I told you so” from Greenwald. That sounds like it would be hell, if I believed in an afterlife.
soonergrunt
My problem with Kagan is that she’s not particularly qualified for the role. I know that the constitution doesn’t require her to be a judge or even a lawyer, but that’s not good enough. By that standard, I could be on the Supreme Court. Does anybody here really want that? If not, then why would anybody want Kagan?
My problem with Kagan is that nobody really knows what her stands and beliefs are about some real important issues. We don’t know how she thinks and arrives at conclusions and decisions. If you’re facing jail and deportation for walking while brown, or you or your SO wants an abortion, or you can’t marry the love of your life even though she looks better in a tuxedo than your brother does, or your only option for a safe working environment is for the feds to step in when your state won’t, then these things matter.
If she were a judge or even a professor of law, we would have a body of work upon which to begin to judge her, but we don’t have that.
Harriet Meirs, a doctrinaire conservative, was woefully unqualified to be on the Supreme Court, and everybody, even the conservatives knew it. Many of them wouldn’t support her nomination to the court because of her easily discerned incompetence to that position. They knew they could do better, even as they knew she would be a reliable vote in the right wing of the court.
As for Kagan, when the best defense of your nomination has been put forward by Marty Peretz of all people and it essentially comes down to “she’s good people and a great conversationalist,” * you are most likely not qualified.
*no linky to the bullshit article in the formerly useful magazine.
John W.
@cat48:
Anyone that clerked for Marshall has to be at least mostly good.
arguingwithsignposts
@John W.:
Like he’s not going to get that anyway.
MikeJ
So did that make Bush look more or less able to get what he wanted? Would shooting down Kagan help or hurt the prospects of Obama getting legislation passed? Does anybody honestly think there’s any real comparision between Kagan and Miers.?
scav
@J.A.F. Rusty Shackleford: So here, Lena Horne Stormy Weather! (I think / hope that will work). Only fair as Kagan’s taken over Lena’s thread. And, to reiterate, in Lena’s honor, let’s all aspire to being “labeled a bad little Red girl” for at least today.
ETA: just be be clear, that’s stuckinred’s link originally.
arguingwithsignposts
@soonergrunt:
Actually, I’d say Lessig’s defense is pretty good. And point of fact, she was nominated to be a judge but her nomination was held up by the GOPers. Imagine that.
BR
@John W.:
See, I don’t think of Greenwald as being intellectually honest. It’s a forgone conclusion at this point that once she gets seated, Greenwald will be looking for something to say “I told you so” in her first opinion. I guarantee he will manufacture outrage out of whole cloth if he has to. It’s pretty clear he’s had a grudge against Obama for a couple of years now, and doesn’t really hide it.
John W.
@soonergrunt:
It’s an exaggeration to say a dean of Harvard law school is unqualified to be on the court. Hell, Christopher Columbus Langdell was way more influential than a number of SCOTUS judges, and he was an idiot. Oh, and Kagan clerked for Marshall.
It’s not that she’s unqualified in terms of experience. If you want to attack, the route is her ideas. Making this about qualifications would eliminate about 80% of Democratic SCOTUS choices in the future.
Say if Ginburg retires. Do you really want Harold Koh off the table? Miers was a hack, but that doesn’t mean than anyone not on the Court of Appeals is a hack.
Again, she’s not my choice – but it’s based on her arguments. Her experience is definitely sufficient for this.
John Cole
Stop it with the damned Greenwald bashing. Let’s review something.
During the campaign, a lot of people supported Obama for Supreme Court picks, and I had to remind folks that because of the make-up of the court and who was likely to retire, the most Obama could possibly do with one term is hold the line on the status quo. He was not going to be able to move the court to the left.
So- if you are a progressive and staunch civil libertarian, and you have a nominee with what some consider questionable hiring practices at Harvard as well as documented opinions on executive authority that trouble you, and then everything else is for the most part a blank slate, then yes, it makes complete sense to be nervous and to have preferred a more known quantity like Diane Wood or someone else.
Kagan is qualified. Obama seems to like her and has nominated her, and I’m going to stick to my belief that a President deserves his picks barring a real reason to disqualify. But Kagan is no Harriet Miers, and while I have my concerns, I’m not going to fight her pick.
But I’m also not going to sit back and attack Greenwald and others for having legitimate concerns. They are being asked to take a leap of faith, and this administration’s record on executive authority and national security have been far from pristine to date.
arguingwithsignposts
I will again point out that unless Kennedy retires soon or one of the RoboScaliThomAlito goes away, this will not change the makeup of the court significantly to the left.
cat48
@John W.: That’s what my husband & I decided last nite. I would have to find out something awful about her before I could oppose her. I’ve read most opinions online, but they r opinions….
She clerked for Judge Mivka also who has really helped Obama in the past. Also she palled around in school with Eliot Spitzer.
I really like Koh for some reason.
John W.
@BR:
I’m with you – I think Greenwald isn’t being intellectually honest in a lot of his attacks on Kagan. He takes an approach of exaggerating all his points, which just gets annoying all the time. I suspect it’s a product of his legal experience.
Here’s an example: saying Kagan could move the court to the right on some issues (I believe it was criminal). Well, Stevens is on the far left and Thurgood Marshall ain’t coming through the door, so anyone will move the court to the right on those issues. So did Sotomayor.
But still – he has a point on Kagan: there’s a light track record and it could blowup on Obama ala Souter or Warren. God I hope not. But it’s at least conceivable, and if it happens Obama will never, ever live it down.
arguingwithsignposts
@John Cole:
I’m not going to let Greenwald get away with the Miers comparisons. That’s bullshit. Miers was a hack. Kagan is far and beyond Miers.
ETA: The “lack of minority hiring” tack is also pretty much bullshit. A dean doesn’t do all the hiring by him/herself. Also, there are other factors involved related to hiring – search committees, offers accepted, etc. that are involved.
John W.
@John Cole:
I agree with that, but Greenwald wraps his legitimate concerns in a sugar coating of exaggeration which serves to 1) get more people to read it, 2) convince some to buy into it and 3) cuts off any influence he could possibly have with policy makers.
I like Kagan, she’s qualified .. but for a “safe” pick there’s a lot of risk there.
But there’s some upside too. In a lot of ways she reminds me of Robert Jackson.
John W.
@arguingwithsignposts:
It could on some issues. Not everything is a 4-4 decision with Kennedy twisting in the wind. It’s just that way in his dreams.
stuckinred
Relax dudes and dudettes,
slashdotcom
How is Lessig’s “defense” of Kagan even taken seriously? It boils down to, “Trust me, dudes and dudettes, I know she’s a progressive.” I’d much rather have a record from which I could draw my own conclusions than be forced to rely on what people assure me to be the case.
I’m not of the opinion that her nomination is Teh Apocalipze!!!11!, but it ain’t exactly something I’m going to stand up and cheer about, either.
JK
Reading this blog, it seems as if Glenn Greenwald is despised almost as much as George Bush and Dick Cheney put together.
I have a lot of respect for both Lessig and Greenwald, but I have to side with Glenn on this issue.
Posts making a strong case for Diane Wood
https://balloon-juice.com/2010/05/09/sunday-night-open-thread-13/#comment-1752268
At the end of the day, my disappointment with Obama is tempered by the fact that the nation would be a 1,000 times worse off if John McCain, Sarah “Mooseburger Helper” Palin, or Scott “Beefcake Bimbo” Brown were making this SCOTUS pick.
cat48
By the end of his 4-yr term, I doubt Obama will ever live down being born. I also doubt he has a lot of time to think about it very much.
Michael
@dmsilev:
White people are unhappy and oppressed if conservative white men aren’t visibly running everything, and don’t comprise 100% of the governing bodies of every institution.
I mean, shit, I noticed that people over at the FReak were upset that Don Cheadle plays Rhodie in Iron Man 2, complaining about “PC” and whining that the part should’ve gone to a white guy.
White conservatives expect more political correctness than anybody on the planet, from demands of the display of their precious[spit] symbols, their demands that everybody else pay obeisance and money to their filthy goatherd death cult, their demands that they run everything and their demands that everyone on the planet buy the lie of ‘Murkan exceptionalism.
Ash Can
@arguingwithsignposts:
And like he’d give a flying fuck in the first place.
arguingwithsignposts
@slashdotcom:
Actually, it boils down to “she does her job well.” At least that was my reading of it. YMMV.
PeakVT
Frankly, I think we would be better off without another Ivy League product.
And a court with six Catholics and three Jews isn’t a terribly good reflection of the country.
middlewest
I think this piece does a pretty good job knocking down some of the hyperventilating.
Also, I’d like assert that progressives’ attempts to smear Kagin over her work as SG defending bad policies and her work at Goldman advising bad people is pretty much the same thing as Liz Cheney smearing terrorists’ lawyers. If it’s wrong or suspicious to merely advise baddys like GS, surely Liz Cheney must be right to cast suspicion on those who choose to represent potential America-hating mass-murderers? What is the difference?
The entire idea our culture has that lawyers should be suspected as co-conspirators to their clients’ crimes is a cancer killing criminal defense law. Under this theory, the heroes of criminal law are always prosecutors, and they are always reward with wealth, power, and career advancement. Meanwhile, overworked public defenders operate on a shoestring budget, but hey those guys defend RAPISTS so fuck ’em!
I’m really happy that Kagin comes from the academic side of things and not the rock-star political prosecutor/ hanging judge track, she can potentially provide some balance towards respect of the criminal defense side of things.
arguingwithsignposts
@JK:
No, but the circular firing squad aspect aggravates things.
Svensker
@henqiguai:
It would be nice to get a progressive on the court. Obama has let most of the true progressives he brought into his administration slip away. I don’t see why we should be mocked for hoping for one last chance.
Or is it “ponies and flowers” to hope that Obama goes outside the beltway establishment?
Redhand
Whatsamatter, do you think he won’t be “collegial” enough?
mistermix
@John Cole: I agree that Kagan is a disappointing pick in a lot of ways, both because she’s unknown and because of her apparent sympathy with some overly robust theories of the role of the executive.
My concern with Greenwald’s Miers rhetoric came after watching a (pretty good) Bloggingheads with him and David Frum, where Greenwald was trying to get Frum to explain Frum’s supposedly principled opposition to Miers. I think GG was imagining that Frum would come up with a variant of the argument of how Miers’ legal opinions weren’t well enough known, that she wasn’t a “true conservative”, etc., but really, my impression was that it was all Frum could do to stop from blurting out “she was a fucking idiot!”.
By labeling this “Obama’s Harriet Miers moment”, it’s as if Greenwald wants to alienate a certain (large) group who might otherwise take his side on this debate. That group is the set of Obama supporters who value his ability to make competent appointments, but would rather have a more liberal Supreme Court. The Miers rhetoric is off-putting to those people.
Svensker
@Michael:
Not going to happen. I predict they like her because she is a solid Establishment pick.
arguingwithsignposts
@mistermix:
I’m not saying I’d agree with Greenwald, but this is a very well-stated case re: the Miers analogy.
ETA: I’m just curious who really thinks Obama could get a “real” progressive on the court? Could you imagine the wingnut explosion? Imagine Bork times 11. People want a paper trail, but these days, a paper trail is more like suicide than a guarantee that someone’s a progressive. Unless you think Obama can ram his nominees down people’s throats.
stuckinred
@PeakVT: Dali for the Supremes!
DougJ
@John Cole:
She’s Jewish, it’s the next best thing.
scav
Ah shit, if he’s going with the “This is Obama’s < insert Bush disaster here > jive, it’s just another lazy journalist running with the current narrative fad rather than actually thinking or doing their damn job.
Svensker
@mistermix:
This. I like Glenn a lot, but the Harriet Miers conflation is ridiculous. Everyone on the Right knew Miers was an idiot. They couldn’t come out and say it, but it was obvious that was the case. No matter what else one thinks of Kagen, she is no idiot.
cat48
Liz Cheney & Phyllis Schlafly have already labeled her “radical” speaking of wingnuts, but they are just getting started.
slashdotcom
@arguingwithsignposts:
I took her competence to be a given, and not part of the larger argument in Lessig’s piece viz. her progressivism. It’s true that she’s not Harriet Miers, in that she has a demonstrated ability to, you know, do stuff of relative importance in her field. But, again, her competence isn’t what I question or take issue with. It’s her comparatively sparse record (relative to the other names floated) that’s the problem. We don’t know what the hell this person really thinks about a whole lot of issues. And since I take it as a given that we aren’t going to find out much about her judicial philosophy in confirmation hearings, we’ll just have to wait until she’s on the SCOTUS.
My fingers are crossed.
scav
@cat48: well du-uh, she’s not a regular on Fox and Friends.
Anya
I’m going to trust Obama’s reason for picking her. I think he is very aware of how important this choice is, picking judges is by far the part of his job that he’s most qualified to do. He studies the court and knows what makes a effective SCOTUS. I am sure he interviewed her and clearly knows where she stands on important issues.
It’s ridiculous to argue that she does not have sufficient qualification because she does not have prior judicial experience when at least 3 justices did not have prior judicial experience before they became SCOTUS vs. the last ten guys who were president.
John S.
Oh heavens, nobody had better criticize Glennzilla for his hyperbolic rhetoric. John Cole’s fee fees might get hurt.
JK
@arguingwithsignposts:
I don’t know the answer to your question, but I would have liked to see Obama at least make the effort. The Senate Republicans would raise a stink over any nominee, so why not double down and ram through a genuine liberal?
General Egali Tarian Stuck
Well, I’m not going to sit back and let this lying hack continue to spread his drek with impunity. You will have to ban me to stop that. Legitimate concerns my ass. And a good morn to you John Cole.
scav
@John S.: Oh ye of little faith, bollocks. having an argy-bargy with all comers including the host is practically the local occupation.
Ash Can
@cat48: No surprise there, but it makes me wonder how the narrative on Kagan could change and evolve as an indirect result. Step One: High-profile right-wing wackos express knee-jerk reaction of “She’s a far-left radical extremist.” Step Two: Corporate media hacks quote said wackos and ask “Is there anything to these serious charges?” Step Three: Said hacks go all journamalistical on Kagan and dig up whatever bits and pieces of information they can find that indicate, in some way, that Kagan is Teh SoziaIist, or at least has views somewhere to the left of the
Sore Losers Club of America18-PercentersTea Partiers. Step Four: Kagan is made out to be someone who’s sensible and competent and not bought and paid for by Big Business (or its subsidiary, Big Religion Inc.) — in other words, a decent choice.Pure speculation on my part, of course, but we’ll see where, if anywhere, this leads.
flukebucket
On ABC this morning they were doing the short bio thing and at the end they suddenly threw up a couple of pictures of her playing softball.
Is that what ya’ll call a dog whistle?
Nick
@soonergrunt:
There’s no minimum qualification, so, yeah, you could be on the Supreme Court and if the President were to choose you, I’d be willing to hear the case.
chopper
while i like greenwald, and understand that he’s a bit nutty at times (he’s supposed to be), i will say the thing that annoys me the most isn’t him, it’s liberals who hang on his every word. you know he isn’t the only opinion out there, guys.
however, i’ll agree with the rest. normally, as with all pundits, i take what he says with a grain of salt. but his honestly comparing kagan to meirs made me click the ‘back’ button before i even finished his screed about the woman. if he can’t or won’t figure out the difference between the two i have no need to read the rest.
General Egali Tarian Stuck
GG thinks he knows better than facts , and if you challenge him, then you are an Obama cultist, bootlicking, Bush-lite per Miers is like Kagan who could be a racist because it’s irresponsible not to smear/speculate that she could be, though I (GG) have no real evidence except,shut up! that’s why.
To hell with him.
John S.
@scav:
I’ve been here enough years to know how things work. Back in the day, Cole used to yell at the commentariat to be nice to the likes of Jeff Goldstein and Tom Maguire. Now it’s Glenn Greenwald.
John has issues with putting people on pedestals and proclaiming them inviolate.
Nick
@slashdotcom:
So what? Greenwald’s boils down to “trust me dudes and dudettes, I know she’s not”
I’d much prefer the opinion of someone who KNOWS her rather than someone who is trying to form an opinion of her through vague statements.
eemom
@John Cole:
Sorry Mr. Cole — but when GG compared Kagan to Harriet Miers, he forfeited the right to be taken seriously. It’s called intellectual dishonesty, and it is his trademark MO.
flukebucket
Radley ain’t impressed.
eemom
@John S.:
I could live with the pedestals, if our honorable host had better taste in who he puts on them.
Glenn Greewald is a petty, hypocritical, mean spirited little bully. The adulation he gets is a testament to the fact that not every gullible idiot votes republican.
wrb
It seems that the ideal nominee would be a highly qualified progressive who had no paper trail and who was known to be a progressive only by those closest too her.
That is probably the only way to get a progressive on the court.
Of course the usual suspects would oppose such a nominee because the lack of paper trail combined with the fact that it was the dread president Obama who nominated her proves that she isn’t progressive and is probably something much worse.
However a a nominee with a paper trail will either be a) demonstrably not progressive or b) going down in flames.
So I’m OK with Kagan. It is at least possible that she is that ideal nominee. I don’t see a practical way of doing better than that.
Learning that she clerked for Marshall earned her a lot of points with me.
4tehlulz
@flukebucket: Gee, ya think?
All they need is to comment on her love of potluck dinners and driving Subarus and they’ll have hit all the dogwhistle frequencies.
Brian J
@Svensker:
I don’t know if she was an idiot. Maybe she was, maybe she wasn’t. I don’t remember specific reactions to her brainpower when she was nominated. But, even as a lay person, I can say she wasn’t qualified to be on the Court. That doesn’t necessarily mean she was dumb. There are lots of smart lawyers who are successful at what they do that aren’t really qualified to be judges like that. No matter what else you can say about her, you can’t deny that about Miers, which is why her nomination was so outrageous.
Mike Kay
who’s greenwald?
what cases has he won?
what legal scholarship does he have?
what makes him more qualified than any other big mouth with a blackberry?
Mike Kay
@eemom: actually, it’s called a smear.
eemom
http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chance
one more time: Fuck Greenwald.
Mike Kay
@wrb:
This is what it’s all about – their dislike of obama.
If Dean or their beloved fake-populist john edwards had nominated kagan they wouldn’t utter a peep.
wrb
I wish I had one of these special rams that Obama refuses to use to ram things through congress.
wrb
@eemom:
Hey, thanks. That article just moved me from thinking that at least there was a faint chance she was that ideal stealth candidate to thinking there is a pretty good chance that she is.
4jkb4ia
This is about what I expected, but Greenwald wrote in HIS FIRST POST ON KAGAN that Kagan is smart and Miers was dumb. The idea of a Miers moment has more to do with interest groups refusing to accept the nominee. And in the case of Miers Miers was not opposed because she was dumb but because she had no strong conservative record. Similarly Kagan has no strong liberal record where some of the finalists at least expressed some strong liberal views. For those of us who were hoping before the election that Obama could pick another Brennan this is a very disappointing day because this could be his last chance to pick anybody.
RP
I agree with the comments that Greenwald forfeited any right to be taken seriously by comparing Kagan to Miers. That’s laughable. Kagan is WELL qualified to be on the Supreme Court. Miers is/was not.
Frankly, I like the fact that she’s never been on a court. We need more justices with diverse professional backgrounds. I’m glad Obama didn’t pick another circuit court judge. Ideally, I’d like to see a politician (HRC?) get picked — i.e., someone with real world experience dealing with legislation and democracy — but Kagan is a good choice.
4jkb4ia
At least Adler thought that any of the finalists could be confirmed.
burnspbesq
@John Cole:
Well, then, you’re wrong. Those are legitimate concerns about OBAMA, not Kagan. Or are you another person who doesn’t understand the Solicitor General’s role? I’m sure Greenwald understands it, which makes what he is doing to Kagan unwarranted character assassination, nothing more, nothing less. It’s despicable.
burnspbesq
@soonergrunt:
Really? Are you seriously asserting that Obama doesn’t know?
4jkb4ia
That’s what Greenwald wrote. That’s everything he wrote about Miers in that post. Notice the focus on what interest groups do.
Svensker
@Mike Kay:
Glenn never promoted Edwards that I remember and early on supported Obama, so I don’t get where you’re going on that.
Mike Kay
@4jkb4ia: would you settle for another william o douglas?
a young guy with light experience, all of it in the commerce side of the law.
http://en.wikipedia.org/wiki/William_O._Douglas#Yale_and_the_SEC
burnspbesq
@mistermix:
Jeez. That’s three in one morning. Does ANYONE who writes for this blog understand the role of the Solicitor General?
Mike Kay
…
4jkb4ia
That Lessig article was good. Although this motivation is entirely political, if you had the brilliant dissenter type this would be something for people to rally around in a position that has more authority and speaks more to history than any lone Congresscritter can do.
eemom
@burnspbesq:
and the fact that GG exploits that ignorance is all the more despicable because he, the erstwhile defender of neonazi skinheads (his one and only actual “accomplishment” as a lawyer, btw), has MANY times said that a lawyer should NEVER be judged on the basis of the positions of his client.
slashdotcom
@Nick:
I think Glennzilla’s criticism is more along the lines of, “Dudes and dudettes, who the shit is this person?” And then he does some research–as do a couple guys at LG&M–and it produces nothing really substantive. There are a few signs that she’d be progressive and a few that she’d bow to claims of executive authority. The ultimate criticism all these folks have is, Why the hell don’t we nominate somebody who has a record of progressivism? Word of mouth and professional recommendations don’t quite cut it when she’s going to be on the SCOTUS for a couple of decades. In other words, I’d rather have a “known known” than an “unknown known.” That’s the worry.
That said, she’ll get confirmed, and I hope Obama’s right on this.
SGEW
I really hope that people whose distaste for the Glennzilla’s rhetoric, style, inferences, and conjecture don’t discount his substantive analysis on executive power and civil liberties. Just because you think he’s wrong about his political conclusions doesn’t mean you should dismiss all of his legal observations out of hand.
For instance, as John pointed out (above), there is a legitimate criticism of Kagan’s statements on executive powers (see, e.g., Charlie Savage’s old article in the NYT). Specifically, Kagan’s public comments during the Bush administration years appear to place her somewhat to the “right” (i.e., a supporter of expanded powers) of, say, Koh or Wood (i.e., supporters of more limited powers). It may seem to be a subtle or distinguishable difference in opinion on Art. II authority, but it is a notable one. Obviously, this is an issue that is much more important to people who already strongly disapprove of the Obama administration’s approach to the expansion of executive power (e.g., the state secret privilege) and possible infringements on civil liberties (e.g., indefinite or preventative detention); how important it is compared to other considerations is a debatable point of view. Also easily debatable (of course) is the extent to which one can judge Kagan’s public statements while she was SG or WH counsel, or how much one can infer from a very sparse paper trail. All in all, imho, I don’t think that it’s anything that should derail her nomination (which is a done deal anyway), but I hardly think that it should all just be hand waved away just because Greenwald is a jerk.
Again; just because you think Greenwald’s style, rhetoric, and political analysis are insufferable doesn’t mean that his legal reportage is wrong. His conjecture, suppositions, and inferences may be full of weak sauce and disingenuousness, but he is virtually never wrong on the actual facts. And there is, indeed, a substantive debate to be had about (and legitimate criticism to be leveled against) the Obama administration’s approach to executive powers and civil liberties.
Right?
RP
@4jkb4ia:
But his claim that Kagan is “at best, an absolute blank slate” is ridiculous.
4jkb4ia
@Mike Kay:
Fair point but not entirely the same because he was head of the SEC. Even if his responsibility was only to enforce the law, these people express their views by how they enforce it.
Emma
burnspbesq: Obviously not.
I’ve been encountering that attitude lately among people who should know better. It makes me nuts. You don’t know — you will NEVER know, unless they write their memoirs in 50 years and discuss it — what arguments and disagreements Obama and Kagan have behind closed doors at the White House. But her role is to be the chief courtroom lawyer of the administration and TO PRESENT THE CASE HER BOSS WANTS HER TO whether she agrees with it or not.
Argue with Obama, not with Kagan.
tomvox1
Greenwald’s intellectually lazy comparison of Kagan to Miers is utterly consistent with GGs attempts to label Obama as being essentially “the same as W. Bush.” Because Greenwald’s primary concern focuses on governmental treatment of accused terrorists/POWs and related civil liberties issues, and because Obama has not moved in the “correct” direction on these issues to Greenwald’s satisfaction, Obama is therefore “no different” than his predecessor in any regard.
Except for the very obvious fact that on a multitude of other issues, Obama is radically different than W, including the choice of Kagan, who is both professionally and intellectually vastly more qualified than Miers. And the loyalty Obama engenders in a large swath of his followers is not blind “Dear Leadership,” as GG tiresomely asserts, but genuine admiration and respect for his abilities and accomplishments, which at this early date in his administration are manifold and historically significant. Although GG is approaching it from outside of the mainstream, his perspective is not all that different than the conventional media desperately trying to turn the Gulf oil spill into “Obama’s Katrina.” People have been so conditioned by institutionalized incompetence radiating from the very top that they are having a hard time spotting genuine leadership ability when they see it, even when the facts clearly demonstrate that superior presidential ability is being exhibited in the face of a wide variety of crises.
Greenwald’s whole raison d’etre is based on his belief that all governmental power is invariably corrupt and/or corrupting, and particularly the power wielded by the Executive branch. In this regard, he is still fighting the concept of a Unitary Executive and urging Obama to willingly surrender the portions of his power carved out by Cheney’s fearful conception. This is a tough but legitimate ask and until he sees signs of voluntary presidential submission of this expanded authority, he will go to any rhetorical lengths to prove that Obama is the perpetrator of executive abuses and hold him accountable for the same (and by extension, that his other decisions are predicated on bringing Progressives to heel because of his innate penchant for despotism). Let’s not forget that Lincoln and FDR were accused of the same sorts of overreach during their legendary presidencies and to have a muckraker on the left constantly trying to point out the boundaries of presidential power is a useful thing. But as with any serial polemicist, it is important to weed out the more paranoid and ridiculous charges that Greenwald so carelessly flings around from the (increasingly rare) moments when he has a legitimate point not solely based on his preconceived conviction that Obama = W. Bush uber alles.
mistersnrub
Hope he nominates Liu when Ginsburg steps down…
Objective Observer
While we’re on the subject of Glenn Greenwald, it must again be pointed out that Glenn has shilled for Jake Tapper in the past.
Does anything more need to be said about Mr. Greenwald’s integrity?
Mike Kay
WHAT IS SHE THINKING!
You never wear green before memorial day!
Nick
@slashdotcom:
Because if you’re old enough to have a record of progressivism, you’re too old to get appointed to the Supreme Court.
Nowadays one thing matters…age. Obama wants appointees who will serve on the court for a quarter century or more, since that’s what Republicans have been doing recently (see Scalia, Thomas, Roberts).
Keep in mind having a history does not necessarily translate to that record on SCOTUS. Souter was quite conservative as New Hampshire Attorney General and while he was on the New Hampshire Supreme Court, he did a 180 on SCOTUS, Earl Warren was a conservative Governor of California, only to become a fairly liberal SCOTUS judge, and John Paul Stevens was far more conservative on the Seventh Circuit than on SCOTUS, look at his affirmative action record.
Mike Kay
@slashdotcom: by that standard William O. Douglas, Hugo Black, and Earl Warren would have rejected for being “unknown” legal quantities.
This is almost like the old argument: you can’t nominate a presidential candidate like JFK, Clinton, or Obama because of their lack of experience.
4jkb4ia
@SGEW:
Hugs this wonderful person.
What she argued for as SG is different from how she argued for it. The ability to make convincing arguments as an SG and a judge seems parallel.
Tom Goldstein has a review of Kagan’s career up at Scotusblog and “blank slate” isn’t ridiculous. She has about 10 law review articles, few of which cover high-profile issues which might come before the Court.
Xenos
@burnspbesq: You are going a bit too far, Counselor. Of course Kagan’s job has been to argue in favor of more executive authority, not less. At the same time a candidate for a judicial position should be held to a standard that includes a modestly high level of intellectual honesty. Her signature is at the bottom of a number of appellate briefs, and she owns the arguments she makes in them.
We do not want a Robert Bork on the court, regardless of her political positions.
Objective Observer
And as we’re talking, Greenwald takes Jeff Toobin out of context on Twitter. Well done, Glenn.
Davis X. Machina
Doesn’t matter. What matters is whether the manic-progressive wing of the party has a scalp to wave around while they shout “See! We do so matter”.
Politics is not primarily a form of self-expression, no matter how hard one tries to make it so.
RP
@slashdotcom:
I think that’s a fair point, and one that you made with a minimum of hyperbole.
One answer to that question — and I know it’s not satisfying — is that a person with a long and obvious track record of progressive views wouldn’t survive the confirmation process. The right is already lashing out at kagan for being a socialist/commie/etc. Getting someone with a longer track record confirmed would be exponentially more difficult. It sucks that the republicans are a bunch of lunatics and a**holes, but it is what it is.
Corner Stone
@Svensker:
Any examples?
General Egali Tarian Stuck
The only legitimate concern I see with this pick, at this time, is the fact there is no judicial record, or paper trail to study what would be a clear indicator of her judicial philosophy. But that would be the case for any pick not having been or currently a judge.
Which now has all eight of the other justices coming from that stuffy world of the judiciary. I think it is valid to wish for a different pick coming from that world where there is a paper trail to study. It is not valid to parse out things that she said and did as a solicitor general, as Dean of Harvard Law School and insinuate a motive from hiring too many white people without having records of those hirings available.
It is perfectly reasonable to expect senators to ask those questions when they will have access to the records. And for those senators to grill her about every single concern from the left and right. But to slyly proffer conclusions from incomplete knowledge is the anatomy of smear, and comparison to Harriet Miers speaks for itself.
It is Obama’s pick, and by every indication, he has gotten to know this woman very well and by picking her it is also safe to assume, imo, that he is satisfied she meets his standards for a SCOTUS judge. Now it’s the senates turn to advise and consent and ask the tough questions in the atmosphere of fairness that Ms. Kagan will have the opportunity to speak for herself. She doesn’t now.
This is our system, with all it’s warts. And other democrats have the right to adopt smear tactics on nominations for our side, and others of us have the right shove the shit right back in their faces. Peace out.
theflax
I’ve also given up on GG because of his overblown rhetoric, but the fine folks at LG&M are also critical of Kagan, and they’re pretty level-headed there. So I have worries, but for now I feel fairly confident that she’ll work out well for progressives on the Court. (At least, I think it’s helpful to have someone with a primarily academic background on the bench.)
Isn’t Ginsberg rumored to retire before Obama’s term is out? Any chance he’s saving Wood for that vacancy? I was hoping she’d be the pick, but I imagine her age, more than anything else, is the problem? (Perhaps it is due time that we as a nation start thinking seriously about fixed terms for Supreme Court justices.)
Nick
@Objective Observer: Yeah, I saw that, that was incredibly out of context, but he was just retweeting it from someone else.
Michael
@Mike Kay:
A legend in his own mind. To the wider world, he’s a gnat on an elephant’s ass.
None.
Off the cuff, bloggeriffic bullshit for the most part. He did write some memos several years ago trying to exhonerate some violent neo-Nazi piece of shit, but lost.
Nothing.
theflax
@Objective Observer: And not to pile on (ok maybe a little bit) didn’t GG defend some of Ron Paul’s racist statements/leanings/whatnot?
Corner Stone
@arguingwithsignposts:
There was no doubt who Roberts was, and yet he was confirmed. Why should the default position be that someone as equally ideological, but polar opposite to Roberts, not be possible?
IOW – “manic progressives” are said to be purity police, but ISTM that “manic pragmatists” are as damaging in their default mindset.
Mike Kay
@Davis X. Machina:
the price a gas is skyrocketing, as the self-immolation begins.
Shalimar
Count Jonathan Turley among those who agree with Greenwald: http://jonathanturley.org/2010/05/10/obama-to-nominate-elena-kagan/#more-22888
Like Greenwald, Turley mostly seems concerned with civil liberties issues and Obama has a terrible record on that front so it probably isn’t surprising that both feel Kagen will likewise be terrible.
burnspbesq
@SGEW:
Of course not. A good product in a crappy package is still a good product. And with Marty Lederman gone to OLC and Scott Horton writing less than he did several years ago, Greenwald’s market share has increased, whether any of us like it or not.
Tom Q
Something worth thinking about: Lawrence O’Donnell said a few weeks ago that, for a generation or more now, progressive would-be Court candidates have been leading stealth lives — keeping from establishing a paper trail that could open them to charges of being left-wing activists, charges that would be amplified by the right-wing echo chamber and accepted by the mainstream press. (And, given the take-no-prisoners m.o. of the current Congressional GOP, would undoubtedly lead to justification of filibuster) So Kagan’s lack of record in that context could be seen as intentional.
I think the fact she clerked for Marshall and associated with Mikva — two guys I admire highly — cerainly suggests progressivism. And I don’t think Obama is some idiot who’d accidentally nominate a closet-Bork.
Davis X. Machina
Because half the Democrats in the Senate are actually Republicans. Half the Republicans in the Senate are, on the other hand, not actually Democrats.
burnspbesq
@Xenos:
No. Whether you realize it or not, you just agreed with Liz Cheney.
Mike Kay
@Shalimar: Turley vigorously supported the impeachment and removal of Bill Clinton, when he was the legal analyst on Fixxed News.
JK
This blog should be renamed I Totally Hate Glenn Greenwald.
Why don’t you guys save some of your hate for genuine scumbags and assholes like Mitch McConnell, John McCain, John Boehner, Eric Cantor, Sarah Palin, Glenn Reynolds, Glenn Beck, George Will, Bill Kristol, Byron York, Michelle Malkin, Michele Bachmann, Rush Limbaugh, Dick Armey, Bill O’Reilly, Sean Hannity, Joe Scarborough, Chris Matthews, Wolf Blitzer, and David Gregory instead of using it all up on Greenwald?
Svensker
@Corner Stone: @Corner Stone:
Dawn Johnson, Greg Craig. I don’t know if Volker could be considered “progressive” but he certainly was prog compared to Summers/Geithner, et al. Volker’s technically still around but certainly not the power he was supposed to be in the administration. And I can’t remember the name of the guy that Obama was going to have as the point man on the Israel/Pal negotiations who got shouted out because he thought Palestinians might actually be human. Just a few examples off the top of my head.
gwangung
@Xenos:
This, of course, disenfranchises all the lawyers eligible for the Court.
Don’t be stupid. Even Greenwald understands that a lawyer argues to the best of their abilities on behalf of their client.
Nick
@Corner Stone:
Hello, do you live in America?
Because conservatives can get away with things liberals can’t. That’s just how it is, and it will be that way until liberals push their weight around, take over the media, take over the messaging system, and increase the size of their numbers in the general public.
gwangung
@Davis X. Machina:
Really.
People keep thinking that Democrats are as monolithic as Republicans. They keep forgetting the Democratic party is much more a coalition of interests that have moved rightwards as the Republicans have gone nuttier (and ideologically more pure).
Svensker
@tomvox1:
Glenn has stated numerous times that Obama is better than Bush. He has also stated that he expects Obama to be MUCH better than Bush, not just a little bit better.
gwangung
@Nick:
How about electing more progressive Congressmen, instead of getting discouraged?
JK
Charles “Chas” Freeman
http://www.thedailybeast.com/blogs-and-stories/2009-03-10/obamarsquos-mideast-policy-smackdown
Adam C
Lots of substantive debate here.
FFS, Greenwald was vehemently opposing Kagan for weeks before Obama appointed her. He did extensive research, found an alternative highly qualified candidate, researched that one, and made a recommendation. If Obama had chosen Woods, Greenwald could hardly have faulted him after that. He was also a strong supporter of Sotomayor when Obama made that appointment.
But now he talks mean and hates everything Obama does so he must be wrong.
Here’s a Miers comparison for you: instead of finding the best person for the job, Bush tried to appoint someone from the close circle of his administration, valuing personal loyalty over ability. What did Obama just do?
Shalimar
@Mike Kay: Did not know that and can’t find a link that says anything more than that Turley testified in favor of impeachment as a constitutional scholar. Which I don’t disagree with even though it was stupid and anti-democratic in practice. If he really thought impeaching Clinton for lying to defend himself in a meaningless trial was a good idea, then that just means he has an opinion that I think is really dumb. If I stopped listening to everyone who disagrees with me on even one issue then I wouldn’t have anyone left to talk with.
Mike Kay
@Svensker: Dawn Johnsen isn’t a “true progressive”, she believes indefinite detention of enemy combatants.
Mike Kay
@Shalimar: but then you can’t cite them as authoritative, especially when you, yourself say, they’re prone to stupid opinions. Appeal to authority is a bitch.
Nick
@Adam C:
Appointed the former dean of Harvard Law and a Clinton nominee to the DC Circuit whose nomination died in community, killed by Republicans.
I mean are you saying just because she works in the administration, this is clearly the same as Miers? Would that be true if it were Hillary Clinton or Janet Napolitano? Miers had no previous record before the Bush administration, not as a scholar, not as a potential judge…Kagan does.
See, this is why hippies sometimes need to be punched.
Corner Stone
@Nick:
And with everyone on the supposed left side of the D caucus being told to accept the pragmatic default reality that certain decisions and outcomes are “the best we can get” – this will never happen.
chopper
what tomvox1 said.
greenwald reminds me of those guys back in 1999 who said that bush and gore were ‘the same’ so why vote for gore? well, from a left-wing enough standpoint that comes off as true, but the rest of us not out in la-la land saw through that garbage.
it’s the same today, with GG talking about how obama is no different than W. yeah, sure.
Mike Kay
@Adam C:
He just appointed the 1939 version of William O. Douglas.
gwangung
@Adam C:
Appointed the best person for the job.
Your criteria for what’s best is not the same as mine. And you have not nearly made a credible effort to convince me that your criteria is valid.
Mike Kay
@JK: we’ll get around to them, eventually. We always do. the problem is greenwald is the first to attack reich marshal Kagan. We’ll get to the others as they arise.
Nick
@Corner Stone:
Do you know why you’re being told to accept the pragmatic default? Because nobody on the left does anything helpful to change the situation. Until you guys find some way to change course that actually works, until you’re able to change the minds of the vast majority of the right-leaning electorate that loves torture, wars they can win, and is scared shit of spending money except on wars and torture, this is the best you’re gonna get.
Here’s a clue, you’re not changing the minds of the right-leaning electorate by threatening to stay home on election day or bitching on blogs.
slashdotcom
@Mike Kay:
I’m not addressing the second half of your statement, because it isn’t an argument I made. But I would like to say, for the sake of clarity, that I would have objected to all three justices you mention for pretty much the same reasons I’m objecting to Kagan now (er, well, not quite, since I’d have objected to Warren because he was a Republican, but anyway…). Point is, I would have been wrong about them.
But let’s be clear: That doesn’t mean the objection is without merit. It’s hindsight that’s 20-20, not foresight. If Kagan turns into Earl Warren on steroids, I’ll be pleased as punch. But we don’t know what kind of justice she’s going to turn into. And that’s a little worrisome.
And @RP (106): I’m not sold on the idea that we couldn’t get a real progressive in, either. I think the hissy-fit we’re about to witness on the Right would happen with any nominee. True, a record of solid progressivism would give the wingnuts a few more “wise Latina”-esque soundbites than they might get out of Kagan. But, shit, Sotomayor got confirmed. We’ve still got 59 Senators. Why not swing for the fences on this? It would at least make the confirmation battle worth our while. Probably be more interesting, too.
Xenos
@burnspbesq:
Them’s fighting words.
Cheney was using the fact of a lawyer representing a client as a smear against that lawyer. I score pretty high on my Obot-Q so that is not the point I am making. But if an attorney were to represent a president who I like by way of making intellectually dishonest arguments then that is a problem.
In this context I don’t condemn Bork because he worked for Nixon, or for his views, but for his role in the Saturday Night Massacre. As Solicitor General Bork fired the Attorney General, something he did not have legal authority to do, and something that his client wanted him to do that was unethical, a disservice to his client and violative of his oath of office.
I don’t claim that Kagan did something that bears comparison to Bork, only that the inquiry is appropriate and that an attorney can not entirely hide behind their role as a provider of services to their clients. Kagan is an officer of the court andd should be judged accordingly.
Brien Jackson
@Adam C:
Appointed a competent official with years of experience in government and academia.
FlipYrWhig
@Shalimar:
Two peas in a pod. I have a game I like to play when I hear that Jonathan Turley is going to be a guest on Olbermann. Drink whenever he says “disturbed” or “disturbing” and you’ll be feeling pretty blissful pretty soon.
@mistermix:
Perish the thought! That’s so unlike the way Greenwald approaches, um, every issue…
tomvox1
@Svensker:
And of course there is no other arbiter of how to define “MUCH better than Bush” than GG. Other opinions just don’t enter into it, no matter how fact-based, and the only criteria used for this judgment of scale will be approved solely by Greenwald.
But for my money, Obama is a WHOLE HEAPING FUCKLOAD better than Bush. Guess that makes me an Obot. I can live with it.
Shalimar
@Mike Kay: When did I say either was “prone” to stupid opinions? Hell, you’ve had some incredibly stupid opinions but that doesn’t mean I can never agree with you and cite your argument on an issue where I think your reasoning is persuasive.
And I’m not saying I agree with Greenwald and Turley here, but I do think they make some good arguments. I’m wary of Kagen on civil liberties and executive power issues because I generally agree with the two of them on those subjects and Kagen’s track record is very sparse. Those are also issues where I don’t trust Obama’s judgment (along with the Afghanistan war) though I think he is a good president in general, so I don’t take his word that she will be great.
I do support the nomination though, there are good arguments for Kagen too and like it or not she is what we have now. Torpedoing her now (if it were even possible from the left, which I don’t think it is unless you want to start co-authoring press releases with Grover Norquist) would hurt liberal goals long-term.
gwangung
@Xenos:
But this is NOT what you did. You did NOT get into the guts of her opinion and clarify what is rightfully her opinion and what is rightfully her client’s.
Moreover, you’ll have to do that in such a way that it differentiates her from clearly progressive candidates such as Dawn Johnson, who holds what seems to be similar opinions on the same areas that are being objected to.
FlipYrWhig
@Shalimar: Attempting to torpedo her only makes sense if your chief interest is in flexing ProgBlog muscle (such as it is) at _something_. I don’t think much of that strategy, last displayed by FDL during the health care reform debate.
Xenos
@gwangung: No, I did not do that. My point was that the inquiry is legitimate, not that I was setting out to conduct such an inquiry myself. I don’t have the time to do it, and I doubt you would want to read my work product in any case.
Nick
@slashdotcom:
You never know what kind of justice a nominee is going to be. If we did, Souter, Stevens, Byron White, and Earl Warren never would’ve made it onto the Supreme Court.
Corner Stone
@Nick:
Here’s a clue, no one is saying anything like that.
wrb
@Tom Q:
Also see this:
This may be as crafty as the plot we got underway in 1961 with a planted birth announcement. If so, I approve.
Nick
@Corner Stone: Oh please, how many times did we listen to choruses of “OMG the base will stay home in November unless Obama does X and doesn’t do Y”
If that’s not what you’re saying, then I have no fucking clue what you’re saying.
Adam C
@Brien Jackson:
@gwangung: @gwangung: @Mike Kay: @Nick:
You guys got anything that says Kagan is the best person for the job other than “she’s not unqualified” and “Obama picked her”? It’s not deniable that she’s a personally loyal member of his administration. That would be fine if she were outstanding in some other aspect.
Greenwald (and several others, including L, G & M) had lots of evidence that Woods would be better.
slashdotcom
@Nick:
I don’t think this holds anymore. I mean, as the court’s become more and more politicized in the past decade, the Executive has become much more interested in installing ideologically acceptable judges when vacancies arose. I certainly didn’t harbor any illusions about Roberts or Alito, and I think Sotomayor was a pretty solid progressive who’s going to come down solidly progressive for her entire tenure on the court.
Bush screwed the pooch with Souter and conservatives noticed. SCOTUS nominations haven’t been the same since.
Which is why I’m so flummoxed by the Kagan nomination.
RP
I think the concerns about her views on executive power are overblown. Even if she’s awful on executive power — and I doubt she is — she’s not going to have much of an opportunity to rule on those issues. I’m much more concerned about her views on things like the commerce clause and the government’s ability to regulate business.
Shalimar
@FlipYrWhig: I think it can also make sense when you’re trying to move negotiations on legislation to the left. Which isn’t applicable to a Supreme Court nominee. Kagen would have been near my bottom choice among all of the names floated, but the debate is over and she is what we have, so time to live with it and come up with some kind of lemonade.
Having said that though, I don’t think it hurts at all for Greenwald, Turley, LGM and everyone else to get in their “we’ve been betrayed” posts today as long as they don’t keep it up during the rest of the process. It is rather disappointing if you didn’t want Kagen to get it.
RP
@Adam C:
There’s no such thing as a “best” candidate. There are a number of very good candidates — Wood, Garland, Dellinger, Sunstein, Hillary Clinton, etc. Kagan is in that group. The notion that she’s not qualified or was picked because she’s personally close to Obama is ridiculous.
wrb
@Adam C:
Lessig makes a decent case. That, in short, she’s where Wood is philosophically but brings this important additional gift:
gwangung
@Adam C:
No, they have not. They have laid out criteria which they judge others to be better. However, I do not agree that these criteria are what I would consider to be the best; in fact, I believe their criteria are incomplete.
JK
2 more progressives make the case against Elena Kagan
Norman Solomon
http://www.alternet.org/rights/146801/progressives_must_fight_the_kagan_nomination?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=alternet_main_tester
Marjorie Cohn
http://www.alternet.org/news/146794/obama%27s_supreme_court_nominee_elena_kagan_will_move_the_court_to_the_right
John Cole
Would it be too much to ask for a link to where Greenwald compared her to Harriet Meiers?
Nick
@JK: Never heard of either of them. What, did you Google “Liberals who don’t like Elena Kagan?”
Tom Hilton
@John W.: Obama is going to get a lifetime of “I told you so” even if he’s completely right and Greenwald is completely wrong. That’s just the way Greenwald operates.
If I were the President of the United States, I sure as hell wouldn’t lose any sleep over what a pipsqueak like Greenwald says.
eemom
can’t wait till Hamsher weighs in from Lalaland.
Or maybe she’ll leave it to pretend-lawyer Marcy Wheeler.
Nick
@John Cole: Here
http://www.salon.com/news/opinion/glenn_greenwald/2010/05/08/kagan
Xenos
@Mike Kay: Douglas in turn took Brandeis’ seat. Brandeis to Douglas to Stevens, between them 96 years on the court. I hope Kagan is up to the job of filling those shoes.
General Egali Tarian Stuck
@John Cole:
Here ya go boss.
He is more comparing us with wingnuts, who valiantly blew up Miers nom, while us bootlicking Obots will cheer on the similar situation with Kagan. Of course, the only comparison I say exists is the fact that both worked in their respective adminstrations, and both were friends of said nominees. I and we say that is where any fair comparison ends.
But I am a humble Obot who could be interpreting the great GG wrongly.
John Cole
@Nick: He didn’t compare Miers to her at all then, did he? What he compared was the conservative reaction to Miers as a blank slate and what he hopes would be the progressive reaction to Kagan as a blank slate.
He wasn’t saying Miers is Kagan, at all. Could we at least be honest about that?
eemom
@John Cole:
here’s another quote (can’t link from here):
Notice how his “objective” is to enable everyone to “exercise their own independent, critical judgment”…….about whether Kagan’s appointment is “REMOTELY JUSTIFIABLE.”
Yep, that’s a guy who approached this whole inquiry with an unbiased, open mind — and wants others to do likewise — for ya.
Nick
@John Cole: He absolutely was saying Kagan is Miers, he’s saying that Miers had nothing for conservatives to defend her on, and thus Kagan has nothing for progressives to defend her on, which is not true.
He’s saying Kagan is as blank a slate as Miers, which is also not true.,
eemom
@John Cole:
watch his bloggingheads debate with David Frum, also too.
A comparison is no less a comparison when it is accomplished by insidious innuendo rather than overt assertion.
General Egali Tarian Stuck
@John Cole:
“at best” is what he said. Not, a blank slate. I admit, GG is fairly slick at smearing with plausible deniability. We are on completely different planets when it comes to Mr. Greenwald. Not even in the same solar system.
General Egali Tarian Stuck
GG approaches his opposition to Obama and now Kagan like a defense lawyer pulling out all the defense attorney tricks of the trade and slinging them against the wall to see what sticks. That is ok, and allowed, but don’t tell me is arguing from anything like fact based research and honesty. I will not buy that.
RP
@John Cole:
He’s absolutely comparing Kagan and Miers. Saying “compare conservatives’ reaction to miers to liberals’ reaction to Kagan” isn’t really any different than saying “compare Miers and Kagan.”
Brien Jackson
Um, no Glenn. That’s how rational people form opinions about things they don’t know much about; they identify people who do know a lot about the matter and lean on their judgment. This sort of hyperbole is exactly why I don’t take anything Greenwald says seriously. And it’s especially ironic given that there are plenty of pople opposing Kagan in no small part because Greenwald does and they trust him.
Brien Jackson
@John Cole:
To point out the obvious, if he’s not saying Kagan is similar to Miers, why would we compare the reactions to the two?
Brien Jackson
@John Cole:
To point out the obvious, if he’s not saying Kagan is similar to Miers, why would we compare the reactions to the two?
General Egali Tarian Stuck
@Brien Jackson:
This is the one and only reason I pay any attention to him at all. It is a curious phenom that can’t be denied or wished away because so many libs follow him like some kind of truth prophet. I wrote up a little something on my blog about the Kagan affair, and am going to spend a lot of time dissecting and critiquing his writings throughout this Kagan debate. I would rather ignore him, but that doesn’t seem possible when every other thread his name comes up. Not only here but throughout the lib blogs.
JK
@Nick:
“Never heard of either of them. What, did you Google “Liberals who don’t like Elena Kagan?”
Is a person chopped liver, if it just so happens that his or her name doesn’t ring a fucking bell with you?
Marjorie Cohn is a professor at the Thomas Jefferson School of Law and a former president of the National Lawyers Guild
h/t http://www.tjsl.edu/faculty_m_cohn
Norman Solomon is a nationally syndicated columnist on media and politics and author of the books War Made Easy and Made Love, Got War
h/t http://www.normansolomon.com/norman_solomon/2004/04/norman_solomon_.html
wrb
If you were Obama and you knew you were going to have the opportunity to fill two more vacancies this term and you knew you wanted Kagan and another person, say Wood, who is a progressive with the sort of extensive progressive record the Greenwald demands and Republicans would love to tear into which do you nominate first?
Kagan, because the other might get so tied up that you never get a chance to nominate the second one before the term ends.
If you want to go to the mat for a nominee you know will make the right froth and spit the time to do it isn’t when there are additional vacancies in queue.
Brien Jackson
@General Egali Tarian Stuck:
well I don’t think there’s anything wrong with people trusting Glenn and leaning on him (although the fact that he has such an audience makes me more contemptuous of him for his rhetorical excesses and embellishments), it’s just irritating for Greenwald to accuse people who trust people who don’t agree with Greenwald of being blind sheep and the embodiment of authoritarianism, or pretending that people who agree with him are really just weighing all of the evidence and thinking critically for themselves. Even if they were trying to do that, the notion is still absurd, assuming everyone isn’t an expert on the subject.
Brien Jackson
@JK:
As a matter of course, if you’re going to appeal to authority, you should probably at least establish that authority.
JK
Damn, if only the hatred for Glenn Greenwald expressed on this blog could be converted into energy we could: end all offshore drilling for good, stop importing oil from the Middle East, shut down all of our nuclear reactors, and close all of our coal mines.
General Egali Tarian Stuck
@JK: There are other libs coming out for Kagan as there are against, say, like Dion and others. This is just beginning and the transom will be full of opinions from all sides. Do we really need to list them all yea and nay in some kind of pundit opinion war? jeebus.
General Egali Tarian Stuck
@Brien Jackson:
This is what I meant. From him and his followers. Otherwise, it would be GG who?
Brien Jackson
@wrb:
Let’s just clear this up: Diane Wood is 60 years old. She’s not going to be nominated to the Supreme Court. Ever.
wrb
@Brien Jackson:
I knew that and had forgotten it.
You’re right.
Makes Glenn’s campaign that much more ridiculous.
JK
@Brien Jackson:
Author information is actually provided at the end of both commentaries if you or anyone else would actually take a minute to click on the links. This is fairly standard practice when it comes to running columns in print or online.
Nick
@JK: That’s nice, just because three liberals came out against Kagan doesn’t make a case. I could fine twice as many who are for her.
Am I supposed to be impressed because two people few have ever heard of agree with Glenn Greenwald?
ricky
@Mike Kay:
who’s greenwald?
what cases has he won?
what legal scholarship does he have?
what makes him more qualified than any other big mouth with a blackberry,?
@eemom:
Nick
@JK:
Is this supposed to be an argument?
Ok, then, if we can covert all the hot air Greenwald has blown out of his ass in the past year and transport it to Mars, we can start a new civilization.
JK
@General Egali Tarian Stuck:
I was getting a little tired of people fixating on Glenn Greenwald as if he were the fucking Antichrist. What the hell is wrong with people reading more than one take on why Kagan is or is not the right choice for this position?
General Egali Tarian Stuck
@JK: GG was included in the post thread, discussion of his opinion ensued, some agreed, others disagreed. This is blogging. no more , no less.
JK
@Nick:
I think the reaction to Greenwald’s columns is a bit overheated.
Brien Jackson
@JK:
Oh sod off. I might see you having a point if it weren’t for Glenn’s insistence that people who don’t care for his excessive hyperbole of rhetorical embellishments or who trust others more than they trust him are in fact blind sheep and latent authoritarians. As it is, that’s his schtick. So fuck him.
Nick
@JK:
Because they all go back to the same bullshit excuses Greenwald gave. She’s not an ideologue, therefore she’s not qualified and if Glenn can take his head out of his ass for a few minutes, he’d realize that an ideologue doesn’t necessarily translate to a solid vote on SCOTUS (Warren, Souter), nor does an unknown quantity translate to mushy centrist (Rehnquist, Douglas).
Nick
@JK: I think Greenwald’s columns are a bit overheated.
gwangung
This is certainly a valid concern.
However, I’m a little leery of reducing arguments over Kagan to one or two litmus tests, particularly when the litmus tests are themselves quite vauge and not well defined. Again, how do we distinguish Kagan’s stands on civil liberties from, say, Dawn Johnson’s, when they seem quite similar?
(And I’m afraid we’re going to have to live with the lack of a paper trail. That’s how nominations have evolved in 21st Century America).
Brien Jackson
@JK:
So wait, Greenwald gets to through out wild and offensive insults at people who don’t see eye-to-eye with him, and when those people get insulted and offended by it the reaction is “overheated?” Nice racket there.
Brien Jackson
@gwangung:
And the ones who do have long records like Sotomayor and alito have largely avoided handling controversial topics within their roles.
mattH
The real issue with Kagan is that she might support Citizens United and be against net neutrality on principal.
Adrienne
@Adam C:
Christ on a crutch I get so damn tired of this argument: There is no fucking such thing as the “best person for the job” when it comes to SCOTUS. There is a subset of the population who most ppl will view as “qualified”. Who actually gets chosen from that sub-set is just a function of what qualities the President values and who best exhibits those qualities. That’s it. PERIOD. There will always be more qualified ppl than there are spots available and what qualities YOU value are probably going to differ from the Presidents. In Obama’s eyes, based on the qualities HE values, Kagan is the best possible nominee. If you disagree, vote for someone else in 2012. That’s why we have elections.
Corner Stone
@John Cole:
No.
SATSQ
mak
@Svensker, @Corner Stone:
Van Jones, Anita Dunne. And the other nominee you’re thinking of is Chas. Freeman for Chair of the National Intelligence Committee. Edit: See JK beat me to it @128. Damn, I’m slow.
henqiguai
@Svensker (#44):
Just getting to read for a few at lunch. Um, “outside the beltway establishment” ? And that would be what class of confirmable legal types ? We (those of us NOT on the right) can’t even count on elected Democrats in the Senate to compromise with other Democrats on issues supposedly near and dear to the hearts of Democrats. Exactly how do those ponies and flowers uber progressives think they’re going to get the backing to get a truly progressive judge on the bench in this environment ?
Channeling a cracked Rumsfeld, we’ve got to deal with the reality we have, not the reality we’d wish.
JK
Brien Jackson, Nick
Glenn Greenwald’s style and tone isn’t always the most agreeable, but I find his arguments more reasonable and rational than any bullshit served up by George Will, Michelle Malkin, Charles Krauthamer, Glenn Reynolds, et al.
I’m not fully sold on Kagan, but it’s obviously much better to have Obama making these selections than McCain, Palin, or any other Republican.
I just hope Kagan doesn’t have any undiscovered skeletons in her background that can fuck up this confirmation process.
Nick
@JK:
Yeah, me too, but that’s only because I actually agree with some of Glenn’s positions.
FlipYrWhig
@mattH: Greenwald supports Citizens United too.
Now FDL is hyperventilating about Kagan. Predictable. It’s almost as though Kagan is a proxy war for unresolved grudges over something else entirely!
Dr. Morpheus
@John Cole:
I’m sorry John, but if that link was supposed to buttress your support for Greenwald’s accusation of supporting excessive executive authority, then you failed miserably. Or Greenwald failed miserably in trying to gin up evidence.
To quote:
So agreeing that no one should be held arbitrarily without transparent, substantive, due process by an independent judiciary makes you an authoritarian, who knew?
Brien Jackson
@JK:
I think they call that damning with faint praise.
I’m not really sold on Kagan either, but a lot of the criticisms are just getting tiresome. Regardless of how you feel about records or lack thereof, it doesn’t make the pick “indefensible,” because that’s just part of the system. Kagan has avoided making detailed opinions known because that’s what the system incentivizes, and Kagan has been groomed for this appointment in basically the same way Roberts and Thomas were; with administration gigs and then an appointment to the appellate court. The sheer density of the anti-Kagan arguments are quickly turning me off.
JK
@Brien Jackson: @Nick:
Obama deserves some credit for finding one female justice who roots for the Mets and another female justice who roots for the Yankees. Unfortunately, I don’t know where Greenwald’s baseball allegiances lie and whether or not it would sway his opinion.
FlipYrWhig
@JK: Whichever baseball team Greenwald supports, you can be sure he believes with all his heart that _he_ chose that allegiance only after thoroughly sifting any and all relevant facts, and that _your_ support for any other team evinces a serious character deficit, which he has the solemn duty of explicating. Expect many updates.
In other words, probably the Red Sox.
JK
@Brien Jackson:
I didn’t intend it to be damning with faint praise. I’m actually a big Greenwald fan, in spite of his sharp elbows. I wish Glenn had a tiny fraction of the influence that George Will or Peggy Noonan has in this rotten, stinking media landscape. I’d love to turn on one of those goddamn Sunday shows just once and see Greenwald, Amy Goodman, Laura Flanders, Thomas Frank, Joe Conason, Errol Louis, Ta-Nehisi Coates, or Will Bunch alongside prissy, preening, pompous George Will, Peggy “Pregnant Pause” Noonan, or David Bobo Brooks.
The imbalance on the Sunday shows and on cable news in general is a godawful, inexcusable, fucking disgrace
http://www.dailykos.com/storyonly/2010/5/9/864977/-Sunday-Snooze-Talk:-The-Skewpot
gwangung
@Brien Jackson:
Well, more like they’re being selected for, by both Demo and Repub presidents.
mattH
@FlipYrWhig: And I care why? Like the post states, Obama thinks Citizens United was bad law, seems like Kagan might not, so perhaps he’d be better not nominating her if that’s her stance. Furthermore, it’s about how appropriate she is for the bench in regards to her stances on case law. This gives you an idea of how she may rule in two instances regarding free speech, and in very specific cases that matter to me, and I surmise to quite a few here. If you’re one of those people I’d be more than happy to hear what you have to say. Couldn’t care less about Greenwald.
FlipYrWhig
@mattH: Just thought it was worth mentioning. I’m in no way a free-speech or civil liberties-focused person in my politics, and I thought it seemed like a pretty rank SC decision myself.
Brien Jackson
the funny thing is, if we were talking about a Republican who worked for multiple Republican administrations and was the dean of a right-leaning law school (and was appointed to the appellate court by a Republican President), progressives wouldn’t doubt for a second that they were a staunch Republican vote on the court. Make it a Democrat though, and suddenly we’re wondering if she’s going to be a reverse-Souter.
Tom Q
FlipyrWig at 212 — This Yankee fan found that hilarious.
Paula
@chopper:
Ugh, this. I could deal with and even be in favor of his general presence on the web if mofos didn’t have the attitude of “Greenwald said it, so it must be trooo.”
Did anyone read his screeds on Obama’s comment on “judicial activism” and SCOTUS during the Civil Rights movement? I accept that GG had a point to make re what he thought was Obama’s pandering to right wing talking points. But he could have enlightened everyone on the fact that 1)the role of the courts in enforcing/ implementing civil rights has always been a debate in mainstream legal history and theory and that 2) Obama’s been on record w/ these opinions since at least 2001, which is when he did a segment on Chicago Public Radio re the courts and civil rights. No one on the radio show treated him like some kind of right-wing radical when he expressed doubt about the efficacy of the courts.
This was particularly odious since GG could have used it as an opportunity to discuss the efficacy of various ways in which people have, historically, tried to win civil rights: through the courts, but also through legislation and perhaps through the pressure brought on by public opinion. Which, in the end, could shed more light on the tools that progressives can have to fight for better laws.
But it’s more important to make a point about Obama and right wing talking points, right?
Shorter me: it’s not because GG hurts my fee fees w/ his mere “rhetoric”, it’s because it renders him useless and harmful to the causes he espouses, which I SUPPORT.
burnspbesq
@JK:
Hate all you want – we’ll make more.
John Cole
Pinning Van Jones and Chas Freeman on Obama is a load of shit. AIPAC took down Chas, and with AIPAC able to find 75 of both houses to bitch slap Obama whenever they want, that is hardly a battle he could have or would want to try to win.
And Van Jones gave his enemies all the ammunition they needed.
burnspbesq
Citizens United is horrible policy, but it’s good law.
In that sense, it’s the polar opposite of Roe v. Wade, which got to the right policy answer by way of some of the worst Constitutional analysis ever seen.
Cacti
@PeakVT:
no religious test shall ever be required as a qualification to any office or public trust under the United States.
Stupid Constitution. Doesn’t it know that the SCOTUS isn’t supposed to have too many Jooz!
JMY
@Svensker:
What the hell is a true progressive? I don’t understand that. Either you are progressive or you are not. Sotomayor is progressive, Kagan is progressive. They aren’t ideologues or partisan hacks. Thomas & Scalia are ideologues and hacks. We can’t criticize what we dislike, but get mad when we can’t have “our” Thomas or Scalia. What happened to wanting not just someone who was center-left, but someone who was smart & fair? It’s like, she’s not liberal enough, so fuck her. That’s the sentiment from GG & Kos.
I swear we act like this administration is comprised of a whole bunch of moderates and conservatives, when that is FAR from the case.
General Egali Tarian Stuck
@Cacti: Correcto
There is no goddamn religious test for public office in this country.
Paula
@JMY:
Well, duhhhhhhhhhhhhhh, there are ideologues on both sides. What I don’t fucking get is that so many of the more righteous lefties don’t like to admit it, because then they could get called on essentially wanting a “lefty” version of the Bush administration. Which throws all of their common sense posturing out the window.
Just admit it, own it, and fight for it as such. I’d have a lot more respect for them if they left mainstream politics because, as rule, mainstream politics cannot have anything to satisfy ideological types. Stop pretending to be part of a conversation w/ mainline “democrats” if you hate everything they do, much of which they must do, because they see themselves as a mainstream, big tent party even if you don’t.
General Egali Tarian Stuck
@Paula: Yes, and I think we could converse with and agree to disagree with each other if there was more ideological honestly on our side. Most of my disagreements with “righteous lefties” is over tactics, not policy, though there is some of that also. And I am so far left on social issues, it is but a stones throw away to anarchist in that realm of politics, I think. But I know that, and that I am a distinct minority in this country on my permissive beliefs, as far as what is possible on a policy level.
It begins with ideologues of the left co-opting the term “progressive” when they are not. And goes downhill from there.
Brachiator
This is frivolous. David Souter and Clarence Thomas were relative blank slates. Souter turned out to be a great justice. Thomas turned out to be not so much.
This is nothing more than a straight up insult to Kagan. Greenwald can kiss my tuckus.
Greenwald clearly imagines himself to be the liberal kingmaker with respect to Supreme Court nominees. I suggest that he, and people who think that he has something meaningful to say on this point, lay down the crack pipe.
Miers was not remotely qualified to be a justice of the Supreme Court. In conversations with Republicans who were on her side, she set a standard for lack of knowledge of constitutional issues that was only surpassed by Sarah Palin’s lack of knowledge of national and foreign policy. From the Wiki
Anyone care to suggest that Kagan is uninformed on the law? Anyone care to suggest that Obama appointed a doofus for Supreme Court Justice?
And when was Miers on the faculty of Harvard?
kay
@Paula:
I did and I was flabbergasted by it. I remembered the 2001 radio interview (like you did) and posted parts of it here.
Can Greenwald really not know that there has been a 40 year battle between liberals who want to litigate and liberals who want to legislate, and that Obama is firmly in the “legislate” camp, and that it’s a whole, organic, accepted progressive philosophy? Obama didn’t invent it. He’s the most celebrated proponent, but it’s been around for a while. I don’t know how you read anything about the civil rights movement in this country and miss that. He skipped the whole Thurgood Marshall section? WTF?
Paula
@kay: Maybe in GG’s mind history and social context are “minor” matters — there is only that abstract thing called “law”.
Certainly that was his POV re Citizens United. Abstractly, it made sense.
That omission on basic Civil Rights Era history floored me, though. I’m neither a lawyer nor a historian and I know that divide exists.
kay
@Paula:
There’s been reams written about it. I don’t know when he went to law school, but I had an elective course on it. It’s big enough to carry a whole course. It may be the favorite subject of civil rights historians. And it was so profoundly important to African Americans, because they had these really brave civil rights litigators, but they also had this amazing movement. Then there’s the HUGE debate about Brown, which continues.
I was interested in the 2001 radio interview (which I read in 2008) because I thought it was amusing that Obama so clearly took a side, and I knew which side he would pick. In the interview he talks about how he’s “biased” because he (was) a legislator and he goes on to mention how that sometimes conflicts with being a lawyer.
Anyway, thanks for weighing in, because now I know at least one other person thought that was nuts. It’s a weird historically narrow way of looking at Obama, like the world started when Bush took office, and we may only look back that far. We can only compare two individuals, and the modern version of Left and Right. Nothing happened before that.
kay
@Paula:
This will make you laugh (maybe) but Kagan is in the Obama camp on litigate vs legislate. I just read one of her answers at her last confirmation hearing, and she’s in the Obama Faction of liberals on that. It jumped out at me, and it’s unequivocal. Unsurprisingly, right? He picked her!
Paula
*chuckle*
Well, duh, right??
One last word on GG: I think he’s right that Obama’s admin has done some egregious things on civil liberties, but I tend to think that it is the nature of power in general to want to aggregate rather than diffuse. Esp since Obama also probably believes tightening civil liberties laws will result in a psychologically sapping fight over the legality of the previous administrations actions. I also think that the American people haven’t been primed to think critically about the uses and abuses committed in their name, so there’s no pushback against any administration that wants to do these things.
What’s more pertinent for civil libertarians @ this point is to educate the American populace about issues of security vs. liberty, because from my experience I think everyone has a very blase, just keep me safe, attitude about not just personal information obtained via wire tapping but also in re our actions in the War on Terror in general. Maybe they say something different in polls, but I have doubts about people’s understanding of why, for ex, the legality of our war in Iraq or our treatment of prisoners could be controversial other than “it embarrasses us and/or costs us money”.
JMY
And FDL had a post saying that Kagan was the most unqualified nominee ever. So if Harold Koh was nominated, what would that make him?
You can have your reasons for disagreeing with the pic, and why so and so would have been better, but I hate, HATE stupid ass arguments and reasons, that disregard any and all context
General Egali Tarian Stuck
@JMY: Yea, I saw that. It was like the sun rising in the east, again.
JMY
@General Egali Tarian Stuck:
I don’t know why I go to that site. It’s torture.
People have a right to voice their disappointments, whatever they may be, with this president. But stop acting as if the world is going to end or Obama pissed on your mother’s grave. That is my biggest concern. I swear, somewhere, at some point in time, Obama must have screwed Glenn’s girlfriend and he’s been bitter ever since, b/c he salivates at any opportunity to bash anything he does.
Mark S.
@JMY:
I somehow don’t think that’s too likely.
JMY
@Mark S.:
lol, I know, just making a point.
4jkb4ia
@eemom:
Well, as you know, bmaz wrote the post. I am on record begging on my hands and knees for CHS to come back for this, but it didn’t happen.