Elena Kagan - The Good, The Not-So-Good

Right-wing media hounds can be expected to eviscerate whatever candidate Obama selects to fill the Supreme Court vacancy left by Justice John Paul Stevens, who is planning to retire this summer.  Criticizing the very air our President breathes is their sole purpose in life.  But they may find themselves barking at the wind this time around.  You have no doubt heard the buzz that Obama's Solicitor General Elena Kagan may possibly be filling Stevens' seat.  The ever-astute Glenn Greenwald writes on Salon that "replacing Stevens with Kagan would shift the Court substantially to the Right on a litany of key issues" which include "national-security and executive power."  About Kagan's last appearance before the Senate Judiciary Committee in 2009, Eric Lichtblau wrote on the New York Times:  There was no daylight between Ms. Kagan, who was the dean of Harvard Law School, and Senator Lindsey Graham, Republican of South Carolina, as he led her through a six-minute colloquy about the president’s broad authority...  (Her accordance with Graham bodes ill for civil libertarians and anti-war progressives.)

Huffington Post:  Kagan is widely praised as an accomplished and intelligent attorney, but is far more conservative than Stevens and could shift the political dynamic of the high court...  Conservatives are responding favorably to the potential of a Justice Elena Kagan while liberals worry that, by choosing her, the administration would miss the opportunity to elevate a genuine progressive...  Kagan's adoration from conservatives could give her what one Supreme Court watcher described as "the easiest and more logical path forward." Her current position as solicitor general rebuts the critique that, unlike the other sitting justices on the court, she has never held a bench seat. And at 49 - though, by the end of the month, 50 - her age is tempting for a president looking to leave a stamp on the court. The fact that she was confirmed by the Senate for her current post just one year ago, by a 61 to 31 vote, adds to the thinking that Republicans will have a difficult task mounting a serious campaign against her now.

Speculation about Ms. Kagan's sexual orientation has been floating around the intertubes for years.  (At Harvard Law School it's referred to as an "open secret" among staff and former students.)  If Kagan is in fact a lesbian, she hasn't yet shared that information with mainstream journalists - and there's really no reason she should.  Her positions on social issues such as LGBT equality and women's reproductive rights are gratifyingly progressive, which is important to those of us who shiver at the prospect of another mad dog homophobe like Antonin Scalia making anti-gay declarations from the bench.  Fox News and hate radio jocks will stir the pot of intolerance, when and if that die is cast.  Wingnut websites will diligently funnel the outrage, as they do when any LGBT American is appointed to an important post.   

Kagan's confirmation hearing would, at the very least, prove interesting. From New York Magazine:  Because for some conservative activists, being in support of marriage equality is grounds for disqualification to serve on the Supreme Court, whether or not Obama is considering a gay candidate for the position is bound to be a source of major controversy as he moves toward replacing outgoing justice John Paul Stevens. Even vocal support for gay issues will be problematic - as is already proving to be the case for Solicitor General Elena Kagan, whose name is among the top handful most mentioned in relation to the job. Kagan was the dean of Harvard Law School and in her current post shapes the Obama administration's legal policy. While lacking a history on the bench and courtroom experience in comparison to other top candidates, she has extensive credentials in government and in education, and clerked for Supreme Court Justice Thurgood Marshall. She also once signed, along with 40 other Harvard professors, a brief urging the Supreme Court to allow law schools to limit military access to campus recruiting events because of the "Don't Ask, Don't Tell" policy that violates university anti-discrimination policies. In an e-mail, she has called the policy "a profound wrong - a moral injustice of the first order."

So what would Kagan's appointment to the Supreme Court indicate?  It would merely reaffirm Obama's reputation as a president who tries to be all things to all people.  Anybody who isn't drinking the Tea Party poison realizes that our Commander-in-chief is a marginally left-of-center politician. (Do you suppose he ever wonders, "Why do they hate me so much? I've proven to them that I'm not a liberal!"  And yes, he's done that - again and again. *sigh*)  As far as SCOTUS is concerned, the chance to appoint an authentic progressive like Justice Stevens will soon be lost, and the highest court in the land will remain (thanks to Bush's predictably partisan picks) a conservative branch of government.  Sadly, Kagan's stance on social issues won't matter much since the court has already been commandeered by right-wing ideologues. 

Comments

[madfloridian]

Hi Max. Good post. I know we are better off with a Democrat as president, but I doubt we will see any shift to the left ever again.
I admire much of what Obama has done, but my ire over what he and his buddy Arne Duncan are doing to education is just growing.

I am sure he will appoint a good judge, just not one who will please the "left", the "liberals" or whatever they call us these days.

[Ames]

Great summary of the situation, thanks.

[Bee Girl]

Kagan isn't the only game in town but it's prolly the easiest way to go. Repugs think they have 2012 sewed up... and maybe they do. Does anybody know who the oldest conservative is on the court? Any of them likely to step down in the next 3 years?