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May 10, 2010 04:52 PM UTC

Elena Kagan Obama's Second SCOTUS Pick

  • 50 Comments
  • by: Colorado Pols

New York Times, we’re awaiting a barometric read from Tom Tancredo:

President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks.

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50 thoughts on “Elena Kagan Obama’s Second SCOTUS Pick”

  1. Analysis from Politico’s Mike Allen:

    WHAT ALLIES WILL SAY: Kagan has a lifetime of public service stemming from the values her parents (mom a public school teacher, dad a lawyer who fought for tenants against big landlords). She’s exceptionally capable at building coalitions and bringing people together — an effective counterweight to Chief Justice Roberts and Justice Scalia, and could help bring swing Justice Kennedy into coalitions. She’s a trailblazer – the first woman dean of Harvard Law School, and first woman Solicitor General. Not just another appellate judge – outside “the “judicial monastery.” Gets along with Justice Scalia in social settings, and has a nice banter with him during arguments. These two will be big: 1) As a Clinton Justice Department official, she worked with Sen. John McCain in negotiating anti-tobacco legislation. 2) In her current job, she argued the administration side in Citizens United, the decision that opened campaigns to more corporate funding. Even though she lost, Dems will argue during her confirmation hearing that the Roberts court is rolling back rights, benefiting corporate interests.

    and

    WHAT CRITICS WILL SAY: She has no judicial experience — not a day in a robe. While Kagan can be expected to follow the lead of many of Obama’s judicial nominees and disavow her record of liberal activism, her record shows that she can become emotionally involved on issues she deeply cares about and there is nothing in her record to suggest she has the proper temperament to be a judge. When Kagan was dean of Harvard Law School, she was a tireless advocate for the university’s decision to ban military recruiters from the school’s campus because of “Don’t Ask, Don’t Tell.” Her record is one of an advocate and an activist, not of a fair-minded, impartial judge. President Obama and Kagan are going to be asking Americans to take her at her word in the hearings, ignoring her previous writings and advocacy efforts. The irony is that Obama’s biggest problems might come from his left. Several liberal scholars have come out aggressively against Kagan for her support of providing law enforcement, intelligence and military officials the tools necessary to effectively fight the war on terror.

    1. Even her critics say she is unusually even tempered and is skilled at building coalitions.

      Republicans would be absolute fools to put up a fight over this nomination.  

    2. mostly enumerated by Mike Allen. There  are two more obvious reasons; that there are now plenty of qualified women to choose from and there is still plenty of pressure to choose another woman and that she is only 50 so there is a lot of staying power there.  However, if Obama gets another pick, for instance if Bader Ginsburg is the next to retire, I would really like to see a non-Ivy League pick for a change, and maybe someone from the west, regardless of gender or ethnicity. A little more of that kind of diversity wouldn’t hurt either.  

      1. Western, Protestant (better yet atheist–the US isn’t ready for that yer though), non ivy league, legislative or other political experience, and if they happen to be a woman or minority great.  

        I suspect it will be Merrick Garland or someone else who will get an easy confirmation.

        2. Kagan is largely an unknown, which can be both a plus and a minus.  Only a couple of hints of her actual positions have come to light; for the rest we have to read the tea leaves.  I personally think she’ll be more progressive than we think, but may have a weak spot or two we might wish would go away.

        3. I don’t know how differently your idea of a real progressive would vote than the more liberal members of the court are voting right now. The only thing that can really change the court in that way is to replace a rightie.  In the meantime somebody capable of convincing swing voter Kennedy to come over from the dark side more often will do the most good. I don’t think that means the most liberal candidate.

          1. We really do need to change the Court in the long run, and we have to wait for one of the righties in the Court (or Kennedy) to retire in order to do that.

            But Kagan (assuming she’s confirmed, which I don’t doubt) will remain on the Court regardless, and her views will shape that future Court that isn’t 5-4/4-5 swinging toward the right.  Having someone slightly more left of the Court’s center, assuming they can persuade Kennedy once in a while, is a Good Thing if it’s possible.

            1. as rightie as you fear. Also think it’s highly unlikely that she won’t get confirmed so it is what it is.  

              Not only that, but besides the clearly far right unitary executive types appointed by Bush or very clearly liberal justices, Supreme Court members have a very spotty record of performing as expected by those who appoint them.  It’s always something of a crap shoot.

              I think Kagan will do a lot more good than harm but, in any case, I believe the die is cast.

              1. Just pointing out that though it doesn’t make much of a difference now on how progressive she is or isn’t, when the Court balance finally does shift, it would be nice to know that there’s another progressive already there waiting rather than a moderate.

                I’m with you, I think she’ll be more liberal than most lefties are giving her credit for.

  2. Never been a judge, picked by a President that never ran anything in his life until he became President.

    Other than that, great pick.

        4. I wanted the Westerner LB.  Give the court some geographical balance.  Kagen will be fine though.  Obama always chooses the middle way so she won’t rock the boat.  Since Obama taught Constitutional Law, I would expect Kagen to be a sharp cookie for Obama to pick her.

          I doubt you consider teaching to be of any achievement LB but we all know you’ve turned into a partisan hack who has an axe to grind with anything Obama does.  I told you that drinking their tea would be bad for your brain but nooooo you had to start guzzling the stuff.

          1. Great teachers are one of our greatest assets.  My mom was one.

            Kagan is obviously brilliant, well-tempered, and not my cup of tea.  Just like Thomas probably isn’t yours.

            It’s interesting to me – do you respect that people might have a totally separate world view than you do or are folks like that (and me) just unintelligent nuisances that don’t know any better?

            1. Reading the few things he has actually authored is torture–the logic is non existent.

              However, I have heard he is a nice guy.

              1. I respect Scalia, for all that he’s not “my cup of tea”.  He’s unarguably a brilliant man, and he rarely writes an opinion that isn’t backed up by some serious logic.  Thomas, OTOH, is an ideologue who frequently IMHO discards inconvenient points in favor of reaching his conclusions.

              3. Hard to believe.

                “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”

                Dissenting from a 2002 decision, Hope v. Pelzer, he objected to reinstating a lawsuit brought by an Alabama inmate who had been handcuffed to a hitching post and left to stand shirtless in the sun for seven hours without water or bathroom breaks. “I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case,” Justice Thomas wrote hopefully.

                http://opinionator.blogs.nytim…

                Scalia seems like a jocular and bright fellow, though I don’t care for the prejudices he disguises as a judicial philosophy.

                Thomas seems like more of a curmudgeonly asshole.

                1. I found the guy suspect, because I believed Anita Hill (and still do) back in his conformation hearing, so I have asked this question many times.

                  Apparently he generally takes time to meet with students that tour the court if he can and he seems genuinely interested in the students.  

                  His judicial decisions are devoid of compassion however.

            2. and never seem to know when I’m pulling your leg.  Who would remember Ali if there was no Joe Frazier.  Can anyone think of Magic without thinking of Bird.  How could Don Knotts be funny without Andy Griffith?  I need you big guy so that my writing is remembered.  You provide that monotone background with standard cliches and knee jerk reactions so that my wit and wisdom shine through in all it’s vivid contrast.  You are an essential component to my literary fun.  I couldn’t make fun of you if you didn’t show up so absolutely I find your commentary indispensable to my enjoyment.  Thanks for asking.

                  2. Being a guy that was raised in the age of memorizing every line from the big five (Animal House, Blues Brothers, Caddyshack, Stripes, and Fletch) I can often relate to others only by associative comedy or movie clips.

                    2. “Little people…called Druids.  No one knows…who they were..or..what…they were doing.”

                    5. I use a mac, and I think there’s a secret Mac button that I’m unaware of, so I just click on the “embed” button, then copy and paste the text from the window.  Email me if that doesn’t make sense of it doesn’t work for you.

                    6. thinking about a Republican owning and using a Mac at a higher level than I’m capable of attaining even with my brilliant metaphors. Too weird big guy.  This is not something that I am able to Grok right now.

                      “Learn how to use the imbedded video feature, we must.  Hmmmmmm.”

  3. Her relatively small record will make her appointment a Roberts-like affair; it will be hard to oppose her because she doesn’t have much of a record to oppose.  The first efforts by the GOP have been pretty low-brow.  From The Hill, the first GOP attack point is that she quoted Thurgood Marshall in that the Constitution as originally written was “defective” and that the SCOTUS has a mission to “show a special solicitude for the despised and the disadvantaged.”

    During her confirmation hearings for Solicitor General, we did get one disturbing hint (that might not be so disturbing after all): she noted at the time that she approved of the Executive Branch’s power to essentially cut through the normal bureaucratic (legislative?) morass in creating policy.  But at the same time, she also is on record as valuing a strongly-competitive three-branch setup where the Executive, Legislative, and Judicial branches actively defend against each other.  IMHO, as a Supreme Court justice she might be inclined to defend against both Executive and Legislative abuse.

    One other tidbit we might eke out from her term as SG…  During the Citizens United case, she seems to have been arguing, at least indirectly, in favor of limiting the (Court-imposed) idea of corporate personhood.

    Aside from that, we know only what we can get from her prior actions and writings, including what Allen writes in the quotes above.  Of her politics, we know that she at one time lamented the loss of the “traditional” Republican Party and the loss of stronger, more principled/liberal Democrats.

    Of course, she’s spent a lot of time since then in school administration, and a lot of people seem to think that she’s gone more conservative since then.

    1. There seemed to be a bit of no look passing going on between her and Sotomayor regarding corporate personhood.  Not coordinated, but a bit of simpatico.  

      Until the Roberts court, Stare Decis had a lot of power, Rehnquist did not lead as a reactionary activist, but rather as conservative against the activism of the Warren and Burger courts (activism I fully supported).

      However, with Roberts ripping the scab off of Stare Decis, I expect more frontal assaults on Corporate personhood, because it has no constitutional basis and was merely some Dicta thrown in to a railroad tax case.  The question of whether the 14th amendment was meant to apply to corporations has never been settled.  

        1. don’t even get me started on my latin spelling.  

          I don’t know if you were trying to make the additional point that I should avoid jargon.  If so you’re right: if you weren’t trying to make that point, I should still avoid it.

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