Rumor has it that when President Obama announced Solicitor General Elena Kagan to the Supreme Court this morning, Vice President Biden, standing next to him, pulled him over and whispered in his ear, “This is a good fucking choice.”
But seriously. The suspense is over: what we all suspected to happen has, indeed, happened. Late last night the news broke that Elena Kagan has been tapped by President Obama to replace Justice John Paul Stevens on our highest court. Kagan is in many ways just like Obama, which may explain why he chose her: she is a “trailblazer” in the sense in which she was the first woman to hold several positions of power that were previously excluded to her forebears; she is a so-called “consensus builder,” which presumably means she is not overly ideological and tries to see all sides of an issue before rendering a decision; she has an elite Ivy League background, having graduated from both Princeton and Harvard Law School, a distinction that, at least these days, seems to have become a prerequisite for being nominated to the Court; she was a law professor and ivory tower academic, yet, not unlike Obama, oddly has a very thin paper trail of written scholarly work; and, perhaps most similarly, no one knows really anything about her core judicial and political ideology, except for the fact that she ostensibly self-identifies as a “liberal,” like the president.
Most on the left, including myself, are disappointed. It’s not the end of the world, and it’s certainly not a huge shock, but I was (perhaps naively) hoping that Obama would replace the self-identified “Liberal Lion” of the Supreme Court with someone who subscribes to, at minimum, the same judicial and political ideology as the justice for whom she has been picked to replace, thus preserving the fragile dynamic of the court. From everything I’ve read, however, based on Kagan’s testimony as Solicitor General, specifically on foreign policy and executive power, it appears likely that this nomination will shift the court markedly to the right.
Don’t get me wrong, Kagan is very good on certain issues: she is pro-choice and widely progressive on the social issues. I’m happy about that, as I should; those issues ought not be minimized or overlooked. My relative unease, however, stems from the lack of spine that the Democrats have shown for fighting for what they supposedly believe in — i.e., a bold progressive judicial ideology — and from the relative deference and obsequiousness that the Democratic base has shown to any decision that Obama makes. As Glenn Greenwald from Salon.com wrote today:
The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.
Elena Kagan has slim record to stand on. She wrote a few good articles and essays in various law reviews, and to that end we ought to support her where we agree and express concern where we don’t. But for the most part, no one knows where she stands on the central issues of the day, like corporate control over our legislative system, military detentions, torture, warrantless wiretapping, and overreaching executive power, among others.
We can only hope that President Obama made the right decision.