Obama seeks to move Supreme Court to the right

Numerous media reported tonight that Monday morning, President Barack Obama will nominate his solicitor general, Elana Kagan, to the U.S. Supreme Court. The Above the Law blog saw several “clues” over the last few days that the president would pick Kagan.

I always expected Obama to choose corporate-friendly pro-choice moderate judges like President Bill Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer. Instead, Obama is choosing a corporate-friendly pro-choice “blank slate.” Kagan is a lot less qualified than Sonia Sotomayor, whom Obama named to the high court last year. She probably will turn out to be more conservative than Justice John Paul Stevens, whom she will replace if confirmed.

Constitutional lawyer Glenn Greenwald laid out a devastating case against Kagan last month, and he supplemented that on Sunday with more links and commentary.

As far as I can tell, Obama gets two things out of this nomination: a chance to show off how “moderate” he is by enraging liberals, and a Supreme Court justice who will support any expansion of executive power begun under President George W. Bush and continued during the current administration.

If tonight’s reports are true, Obama is on the verge of making one of the biggest mistakes of his presidency. We may all pay for that decades into the future.

UPDATE: To be clear, I’m not advocating a progressive fight against confirming Kagan. That would be pointless and doomed to fail. I wish the president had named someone who would be a counter-weight to the four right-wing ideologues on the court, but not surprisingly, he chose a different course. I guess we’ll all have to hope that Lawrence Lessig is right about Kagan. Incidentally, I didn’t find Walter Dellinger’s case for her convincing; Greenwald decimated that piece here.

Meanwhile, we can count on conservatives to make idiotic arguments against Kagan. Media Matters previews and rebuts 15 “myths” about her nomination we’re likely to hear in the coming weeks.

SECOND UPDATE: Right on cue, the conservative National Review Online blog attacks Kagan’s “remoteness” from the average American because she did not learn to drive until her late 20s.

THIRD UPDATE: Democratic Senate candidate Tom Fiegen released the following statement regarding Kagan’s nomination:

“The President’s nomination of Ms. Kagan is an opportunity for our senior senator Chuck Grassley to either objectively advise and consent to the nomination or to bow to right wing forces in his party which took down Utah U.S. Senator Bob Bennett. Iowans will be watching to see whether Senator Grassley represents us or the most extreme wing of his own party.”

My money’s on “most extreme wing of his own party.” But at least this time Grassley will be able to remember why he voted against the president’s nominee.

FOURTH UPDATE: Oops, I forgot to post Grassley’s statement:

“A lifetime appointment requires a thorough vetting and I expect Elena Kagan to receive fair, respectful and deliberative consideration.  The Constitution gives the Senate a tremendous responsibility to carefully review the President’s nominees to the Supreme Court.   The Judiciary Committee must take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.  With no judicial experience, it becomes even more important that we ask thorough questions to determine that Ms. Kagan truly understands the constitutional role of a Supreme Court justice.”

Senator Tom Harkin released this statement:

“Elena Kagan is extremely qualified.  She has the intellect and experience necessary to serve on our nation’s highest Court and her stellar legal credentials have been recognized by liberal and conservative lawyers alike.  She clerked for two judges for whom I have enormous respect – Judge Abner Mikva and Justice Thurgood Marshall.  I am also encouraged that in this nomination, the President selected a candidate from outside of the Judiciary.  Elena Kagan is recognized as one of the leading legal educators in our country.  

“I am confident that, if confirmed, she will be an important voice on our Court for the rule of law and constitutional rights and values.  She will ensure equality and give proper effect to our most important statutes, such as the Americans with Disabilities Act and Civil Rights Act, so our most vulnerable citizens receive the fullest protections of the law.

“Elena Kagan’s nomination comes after a series of firsts in her career – first female Dean of Harvard Law School and first female Solicitor General – setting the stage for what may be only the fourth woman to serve on the Court in our history.”

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  • The Constitution

    The Constitution itself says very little specifically about the regulation of specific types of commerce within the commerce clause so I always laugh when people are always able to predict where eight of the justices are going to rule and Kennedy is almost always the swing vote, the Supreme Court has become too much of a political football.  

    • Republicans have appointed right-wing ideologues

      in Scalia, Thomas, Roberts and Alito. We need some kind of reliable counter-weight to them. Maybe Kagan won’t turn out to be so bad, but if she turns out to be Souter in reverse we are all screwed.

      Obama could have chosen any number of people who would be more reliable progressive voices.

  • Cautiously optimistic

    I think Greenwald’s obsession with torpedoing Kagan is a little overbearing (he’s been gunning for her for months). I favor Lessig’s take, as he seems closer to the (prospective) justice than anyone.

    The court needs, more than anything, a majority maker–not necessarily a dyed-in-the-wool liberal. Given that Kagan’s entire job as SG was to try to pull and persuade the justices, there’s every reason to believe she’ll be able to do that from behind the bench as well.

    Give Kagan a shot. Don’t just fall in for Greenwald’s “the sky is falling” arguments.

    • Obama is really rolling the dice here

      Jeffrey Toobin has been friends with Kagan for 27 years, but even he admits, “her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.”

    • I Disagree

      Greenwald is exactly on point, IMO. You don’t have to take Greenwald’s opinions, if you don’t like his views. Go to Firedoglake, and you’ll find out that Kagan has had ties to Goldman Sachs in the past, she believes in expanded executive powers, she believes “the world is a battlefield” when it comes to “fightin’ the war on terror,” and she believes in fewer civil rights for us. She’s a corporatist and basically, she’s Scalia in drag, which is, of course, why our Republican president is so taken with her.

      Tom Harkin has become Obama’s puppy over that past year. Has he spoken out against any of Obama’s policies, from offshore drilling to the escalation of Obama’s wars? No, he hasn’t, and you know darned well he would have if Bush had advocated for those policies.

  • Greenwald and Jamin Raskin duked it out...

    on Democracy Now! this morning.  

    Read it or view it here; http://www.democracynow.org/20…

    Greenwald does seem a bit over the top, although I laughed when he argued that simply being “smart” is not enough, saying, “Even John Yoo is smart”.

  • Anyone who followed the election

    should not have been surprised about this or any of the other middle of the road decisions Obama has made.  Of course, I admit that many people who voted for Obama heard what they wanted to hear, not what he actually said.

    I do agree that Kagan is obviously a big unknown as the clean slate choice, so progressives/liberals have a reason to worry.  Still, to me the bigger picture question the upset libs should ask is this: What if McCain had appointed the last two supremes?  We would surely be looking at people more like Roberts and Alito rather than Sotomayor and Kagan.  Now that would have truly changed the court.  So libs should be happy they helped elect Obama.

    To me, the interesting issue about the court is the chess-like nature of the game of filling vacancies.  For example, conservatives dodged a big bullet when Rehnquist got sick during W’s term, not after Jan. 20, 2009.  And libs got lucky that Stevens was able to hold on until W was gone.  The real changes will happen when there will be an involuntary vacancy for a judge who is of an opposite party/ideology from the president.

    • the problem is

      Obama is picking a centrist to replace one of the most liberal voices on the court (not that Stevens is always liberal, but we have no Brennans or Marshalls anymore).

      If he were replacing, say, Scalia with Kagan that would not be so bad.

  • I was wrong...and I'm surprised

    I thought that Obama would pick a minority (I know she’s Jewish, but the entire court is Jewish or Catholic)

    My SCOTUS Prediction: Wrong

    As for Kagan, we all know presidents lie when they say, “I have no litmus test.”  They should add the words “in public” behind those kinds of statements.

    Because of the President’s 1 on 1 meetings with Kagan, he knows exactly how she’ll rule on most issues: Abortion, gay marriage, Citizens United, Guns, God, etc.

    If he doesn’t know all of the answers to these questions, then he’s a bit on the dumb side (like George HW Bush was, when he clearly didn’t know what Souter’s feelings were)

    Kagan could surprise us, though.  She’ll be confirmed either way.

    As for Grassley, if he does vote against Kagan, it would more likely be retaliation for Harkin’s votes against Roberts and Alito.

    The facts are these:

    Grassley voted yes on Breyer and Ginsburg

    Harkin proceeded to vote no on Roberts and Alito

    Grassley may just return the favor and vote no on both Sotomayor and Kagan.

    We’ll see.  But I bet my prediction is right…unlike my last one.

    • I know how you feel...

      …my money was on Koh.

      • I would have loved to see Koh

        but I don’t think he even ended up on the short list. Too bad.

      • I didn't think male

        A 7-2 MF split isn’t what Obama wants.  6-3 is much better.  Maybe a guy next time…unless it’s Ginsburg retiring.

        Kagan is a very safe choice for the President, with little risk.  People were wondering if Obama would go to the mat with a super-liberal, like a Bork.  Clearly, he did not.  I think Kagan will be a Ginsburg…perhaps a little more moderate-liberal, than a true liberal like Stevens, Ginsberg, Souter, and Breyer, but the balance shouldn’t be affected to much.

        I can’t see Kagan joining with the conservatives on the court very much.  

        Time will tell.

        • but Stevens, Ginsberg and Breyer

          have never been “true liberals,” not like Brennan and Marshall were. They just look that way compared to the far-right, way out of the mainstream Republican appointees.

          The moderate Republican judges appointed during the Reagan era would look like liberals compared to Scalia, Thomas, Roberts and Alito.

          • It's all a matter of perspective,

            of course.  I tend to look at the polls of the American people to find out what they think about the court’s makeup.

            Listening to Jeffrey Toobin or Eugene Volokh is nice, but they’re just two guys.  Smart guys…but just two.  


            The most recent poll showed that more Americans feel that the court is too liberal as of now.  Which means that Roberts is more in the mainstream than Ginsberg.  

            As President Obama prepares to nominate a replacement for retiring Supreme Court Justice John Paul Stevens, 39% of voters nationwide believe the Supreme Court is too liberal. The latest Rasmussen Reports national telephone survey finds that 25% think the high court is too conservative, and 27% feel the court’s ideological balance is about right.

            Obviously, labels are rather subjective and for a conservative, the former ACLU lawyer Ginsberg is way too liberal, and to a liberal, the strict constructionist Scalia is way too conservative.

            However, using logic and inference, a sizable plurality of Americans seem to think that Ginsberg, Breyer, Sotomayor, and Stevens are more out of the mainstream than Roberts, Scalia, Alito, and Thomas.

            Now, this is just one poll (and a Ras poll, at that) but, there seems to be more Americans who not only believe that the court is just about right at present, but almost 40 believe it is not conservative enough.

        • "like a Bork" for the left, that is. n/t

    • six Catholics and three Jews

      on the Supreme Court. Would have been mind-boggling to people a few decades ago.

      Your comment reminded me of a story that happened to a friend many years ago, when he was applying for a job at NPR. He spoke with someone over the phone, and the person asked if he happened to be a minority. My friend said he is Jewish, to which the NPR guy replied, “That’s no minority here.”

      I agree, Kagan will be confirmed. I can’t see any bombshell derailing that train.