Monday, May 10, 2010

Obama Nominates Elena Kagan, Upsets The Left

This morning, Obama picked Elena Kagan for the Supreme Court. Kagan is a woman who looks like Mike Myers from Austin Powers and has an even smaller paper trail than stealth candidate David Souter. She is a self-avowed liberal, but the left isn’t happy. And, truthfully, they have reason to be concerned. Indeed, Obama seems to have picked her because she's likely to be acceptable to the Republicans.

Let’s start with the obvious. Kagan checks off a lot of boxes. She’s female and Jewish, two of Obama’s biggest supporting groups. She’s rumored to be a lesbian, another Obama supporting group, though they prefer their candidates to be open. She’s also young, at 50, so she’s likely to stay on the court a long time.

So what does she stand for? Nobody knows, and that’s the problem.

She was a law clerk for Thurgood Marshall, one of the biggest dipsh*ts to ever sit on the Supreme Court. That’s bad. But she taught with Obama at the University of Chicago Law School, a supposedly conservative school. Her biggest achievement was becoming dean of the Harvard Law School (2003-2009), where she grabbed a little infamy for refusing to let military recruiters operate on campus because of the military’s “don’t ask, don’t tell” policy, a policy put in place while she worked at the Clinton White House. She called the policy a “moral outrage.”

Sounds like a good leftist, right? Not so fast. When she was at Harvard, she garnered serious praise from conservatives for being quite fair to conservative groups at Harvard and by recruiting numerous conservatives for the Harvard faculty. This bothers the left a lot. What’s more, they are furious with her for hiring mostly white males (25 out of 32) during her tenure.

They are also upset with her actions vis-à-vis terror. At one point, she signed a letter opposing legislation proposed by Sen. Lindsey Graham (RINO-SC) to strip courts of the power to review detention practices at Guantanamo Bay, complaining that this law could be used to strip Americans of their legal rights and claiming that this is inconsistent with our government’s current and former criticism of dictatorships. This sounds liberal (though it's also consistent with libertarian thinking). But then, when she became Solicitor General, she took a different stance on this and has been roundly criticized by the left for advocating “Bush-lite.”

Beyond that, she has a scant paper trail, which is also upsetting the left a lot. She hasn’t taken any public stances on the nation’s more controversial issues over the past 20 years, despite the fact that few leftists have been able to shut their yaps on any issue during that time period.

Moreover, she has no legal record. In fact, 31 Republican Senators voted against her confirmation as Solicitor General because, not only has she never argued before the Supreme Court, she’s never argued before ANY COURT. (Her nomination to the D.C. Circuit Court of Appeals was shot down for that very reason.)

So no one knows what she stands for, which has actually generated a whisper campaign against her on the left. And you can see why they would be concerned. She may turn out to be everything the left wants, but it’s a gamble. And that’s making them furious since there are confirmed leftist candidates out there that could have been nominated instead.

Frankly, I think they have reason to worry. This is entirely speculation on my part, but I suspect the left will regret replacing Stevens with her. Stevens was a far-left lunatic. Kagan has shown through her time at Harvard and her adoption of “Bush-lite” that she’s much more reasonable and most likely center-left. She doesn’t seem to hate the right, like the fringe left does. She seems open to reason, and is not blind to ideology. And she seems to respect rule of law. Moreover, the fact that she would hire conservatives and wouldn’t whine constantly about the “evil Bush administration” makes me think that, at the least, she’s a liberal rather than a leftist, and she may even be a moderate liberal at that. If that’s the case, then Obama will have actually moved the court considerably to the right with this choice.

Still, who the heck knows?


Tennessee Jed said...

Ideologically, I suppose a gamble for the left is a good thing. At the end of the day, I hope Republicans grill her fairly, responsibly, and throughly. I don't think she deserves to be a Supreme Court Justice do to lack of experience.

AndrewPrice said...

Jed, I don't think so either, but I honestly think she's the best that we're going to get out of this administration. And, truthfully, the court hasn't always been a very august body. It's had its share of incompetents and pure politicians.

In the end, I suspect (guess) that she will turn out to be a moderate, and a total lost opportunity for the left. Good.

LawHawkSF said...

Andrew: If I remember correctly, Stevens "grew in office" and kept moving farther left as he got rave notices from the MSM and the Democrats. As far as our lists went, we had Kagan pegged as the least left of his lefty pals, but not exactly a "moderate," either, particularly as it relates to the military.

But look at the bright side. You picked Wood back in April, and I picked Sunstein as a dark horse. Misery loves company, and we were both wrong (but at least we both had Kagan on our lists, so we aren't completely useless as pundits). LOL

AndrewPrice said...

Lawhawk, I'm frankly surprised that he didn't pick Wood. She has all the "support" of having been previously confirmed, she's generally liked, and she's made some hard core leftist decisions. If I were a leftist, I'd be furious that he picked Kagan. But then, I'd probably be getting used to the fact that he keeps kicking leftists in the teeth.

LawHawkSF said...

Andrew: For all his feigned calm and confidence, I think the best way to describe the big O right now is "disoriented."

AndrewPrice said...

Good word Lawhawk! His whole policy seems confused and random these days. This strikes me as a surrender move, that he nominated her to avoid having to fight about it.

I honestly think that in a few years, the left will look back at this as a wasted opportunity.

Joel Farnham said...


I think that she was picked because Obama expects her to be shot down. The next one will be his real pick.

CalFederalist said...

Andrew: Care to take any bets on how she'll vote on the gay marriage issue when it reaches the Supreme Court?

AndrewPrice said...

Joel, I've had that thought too, but in the end, I think he may have picked her simply to avoid another fight that he doesn't need.

All in all, I think she may be the best we're going to get out of this administration, so I hope the Republicans keep this in mind. They need compare her views with whoever is likely to be his next pick if they try to block her.

AndrewPrice said...

CalFed, Odds are that she'd vote to strike it down. That seems to be the common liberal position these days -- and quite a few conservatives have that view as well.

As you know, I disagree with gay marriage for intellectual reasons, though I personally don't really care one way or the other.

It's possible that Kagan see the same kind of distinctions that I do -- that not everything we think of as moral or immoral should be resolved by law. Her time at Harvard suggests that she can make those kinds of distinctions. Whether she will, however, is the real question.

If I had to guess, I'd say she'd strike it down -- which is what Stevens would have done.

BevfromNYC said...

I just read a report that Kagan encouraged Clinton to support a ban on late term abortions. That's a good sign.

AndrewPrice said...

Bev, There is a lot coming out that is making the left very nervous. This is going to be very interesting.

LawHawkSF said...

Andrew: I assume you mean she would vote to strike down Prop 8, and uphold the lower court (and probably the Ninth Circuit). I agree. It will probably be a 5-4 decision to uphold Prop 8, assuming there are no other appointments to the Court between now and then.

I oppose gay marriage in California as it has been presented up until now. Until there are firm constitutional protections for religious institutions, I don't trust the courts to make any of these decisions. I fully believe that Kagan is in sync with those who believe abstract "human rights" and "civil rights" trump First Amendment Free Exercise express wording in the Constitution.

Joel Farnham said...


I suspect anyone nominated by Obama. Until proven different, I will consider her a socialist friend of Obama's.

AndrewPrice said...

Lawhawk, That's correct, I suspect she would strike down Prop 8.

HOWEVER, I have just been told (but can't confirm) that when she was nominated as Solicitor General, she was asked if she thought "gay marriage was a right" and she apparently answered "No." Interesting.

AndrewPrice said...

Joel, I can't disagree with your suspicions, but since Obama will be making the appointment, I see it as trying to find the "lessest" of a bunch of evils.

LawHawkSF said...

Andrew: That is interesting. Maybe she'll surprise us, pleasantly for a change. But please note: I'm not holding my breath.

AndrewPrice said...

Lawhawk, I'm not holding my breath either, but it would be pretty funny if she turned out to be our version of Souter!

Ponderosa said...

There is something very elegant and devious about the Kagen nomination.

First, she is a stealth candidate just like her boss. Affable but very little substance.

Second, A former Senate Judiciary Chairman is taken down by a SCOTUS nominee a week before primary voting begins. And Specter can't say a word. He voted against her in 2009. Sestak must be overjoyed. lol.

(BTW, it couldn't happen to a nicer ex-Republican.)

Obama's team is still great at spin/deception and elections.

Oh and don't worry she will be a very, very unpleasant surprise.

StanH said...

I said to someone yesterday that she looks like Janet Napolitano’s twin?

Dick Morris was on Hannity last evening, and knew Kagan in the Clinton White House. He said the same thing that you said, that she was a moderate on most stances, and mentioned Souter, as well. We’ll guess is she’ll be confirmed, and a pain in everyone’s tail.

AndrewPrice said...

Ponderosa, I hadn't thought about the Arlen Specter thing, but that really makes me laugh. He will need to support her now, and thus toss out his "principles" once again.

I agree with you about Obama's team being very deceptive about elections. What I wonder about though is which side they are deceiving now?

AndrewPrice said...

Stan, If I had to guess, I think she'll end up being a "team player" on the court and will likely vote with the majority on most issues -- which ever way the majority goes.

That's interesting that Morris had the same thoughts. I guess, twisted minds think alike? Yikes!

Writer X said...

There's a lot to learn still about Kagan. I don't believe for a second that Pres. Obama chose her to appease Republicans.

Interesting post, Andrew.

Patti said...

i was waiting for commenterama's take. thansk and link'd!

AndrewPrice said...

Writer X, I am suspicious of everything he does. But what I find so strange about him is how often he seems to just quit on issues. In other words, it's impossible to tell what he's going to fight about and what he just wants to get behind him. I suspect this may be one of those issues.

I hope the Republicans question her thoroughly, but unless something new comes up, then I think she might be the best we're going to get.

AndrewPrice said...

Thanks Patti! We might not get there fast, but we always try to get there! LOL!

CrispyRice said...

Interesting article, Andrew, thanks!

I'm also of the mind that he expects her to get shot down so he can put a serious radical. But who knows?

I agree that we're not going to get much better out of these guys.

AndrewPrice said...

Crispy, That's the thing to remember. I would LOVE for him to appoint Clarence Thomas's clone, but that's not going to happen.

In this situation, you have to look at her and compare her to the alternatives. Everything I see tells me that she'll be a "consensus based" moderate -- which will make the left insane. By comparison, the alternatives are all open far-left leftists.

So I say that unless something horrible comes out during the hearings, she should be supported.

Anonymous said...

I’m am concerned that many on the right are being knee-jerk about this. They can't think beyond the current time, or what it means for the future. Can't they figure out that this nomination is about as good as we could possibly expect? Barring some amazing revelation during the investigations, we should just vet her, make our criticism, and then move on to an up or down vote. We'll lose on the vote, but it would accomplish the goal of continuing government and at the same time indicate just who believes in what. I'm sure some people are dreaming of a filibuster. Ain't gonna happen, and we'd look like fools for trying. Too many people are too filled with Obama-hatred that they can't see that if we make a battle-royal out of this, the Democrats will do the same thing to us when we have the presidency and that she’s not worth fighting over. It could get so much worse. The last election gave us a lemon, so let's make some lemonade.

AndrewPrice said...

Anon, I think there's a lot to what you say. I think there are many people right now who just assume that anyone Obama will appoint is bad. While that's probably true, we have to keep in mind that this is a question of alternatives. You really can't filibuster more than one or two, and you usually pay a huge price for it. So unless we really think we're going to get someone better in the next two picks, then it would be unwise to shoot her down just because. (And that's assuming we can even do it, which is very unlikely as seven Republicans voted for her last time.)

LawHawkSF said...

Anon: There are so many things that we can actually do something about. This isn't one of them. She may have a deep, dark secret that gets revealed, but barring that, the Republicans need to get their licks in, make their dissatisfaction known, and then vote. I'd hate to see us allow cap 'n tax or amnesty pass while we're too busy fighting a nomination that isn't that horrible, and which we'd lose anyway.

CrisD said...

as usual, great post.

I think they are counting on her to be a good liberal. I view this as a bone to the gays (although I think in reality her gay politics are very conservative--she is a token.)

She will likely run with the pack with her opinions.

My interest peaks on the discussion of how conservative Republicans should correctly respond to her nomination. I understand that we want to save our political energy for another day and a winnable issue. But consider that non-junkie political news types are fed up with the appearance that Republicans are ineffective losers and if we unceremoniously fold that this is another display of our weakness.

AndrewPrice said...

CrisD, I understand your point and I fully see the danger that Republicans seem willing to cave in. But we really can't win this fight, so fighting will only make us look ineffective -- especially when large numbers of Republicans defect. That will just bring out charges of "RINO".

It would be better to avoid the issue by having conservatives not try to game this, but instead to be upfront with the public that (1) Obama will get someone on the court, and (2) she's about as good as we can expect he will ever nominate, and (3) the alternatives are much worse. But making a big deal about how bad she is and then losing, or stopping her only to get someone worse, are not good alternatives.

Joel Farnham said...


She is a stealth nomination. She and Barack are close friends. He only likes radicals. Guilt by association is true in this case.

Principled stand is needed. We will go down in defeat but the American People already know that we can't stop anything. That is why the Tea Partiers are mobilizing.

AndrewPrice said...

Joel, First, she is not entirely stealth. She has a record, and the record is of a moderate-liberal. To believe that she is a secret socialist you have to believe (1) that she acted against her own insticts for years in the hopes that Obama would someday become President and could then nominate her, and (2) that everyone (conservative or liberal) who has met her and spoken with her was fooled by her.

Secondly, there are times for principle and there are times to play smart politics. Politics often is about choosing between the lesser of evils. To take "a principled stand" based on the suspicion that she's not what she appears when all you can do is make the situation worse is simply the wrong thing to do. That's self-destructive and foolish, not noble.

What exactly do you think the end result will be of trying to filibuster her? Even if you somehow win this one, what do you do then? Keep filibustering until Obama is out of office? Because his nominees will get increasingly more far left as the public turns against you and eventually forces you to take whatever he's offering.

LawHawkSF said...

Andrew: I don't see Kagan as a stealth candidate either. She's not wild about the military, she has made her views known, but for academia that was quite mainstream. When required to comply with the Supreme Court's ruling, she did so without trying an end-run.

She's pro-labor, but she's an Obama nomination, so I don't think that's either a surprise or something she'll be sneaking past us. Her social views are somewhat liberal, but she hasn't shown any inclination toward forcing her personal views on the law in an extra-constitutional manner.

She made some strong socialist comments while in college, but I haven't seen much of that from her since then. For those who have read this blog (or Big Hollywood) for any length of time, they know where I was and what I was doing in Berkeley in the 60s. I certainly wouldn't want my current political views or my love of the Constitution judged by what I said and did as a radical student.

Rather than a stealth candidate, I see Kagan as about as good as we can expect from a leftist pseudo-lawyer semi-president like Obama. We need to draw Kagan out, find any skeletons that she might or might not have hidden in her legal closet, make our opinions known, then have the Senate do an up-or-down vote. It's perfectly possible to maintain principle without risking a filibuster that is almost guaranteed to fail. There's a difference between bravery and foolhardiness.

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