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Justice Kagan (Joe)

Thoughts on the President's most recent nomination to the Supreme Court:

1.  She's a woman.  Had you heard?  This would give us more female Justices than there have ever been on the Supreme Court — that's a good thing.  It also could mean that when Justice Ginsburg retires, Obama won't feel constrained to replace her with another woman.

2.  She's Obama's nominee.  I mean, more than Sotomayor, more than the next one — she's it.  Obama made her Solicitor General with the intention of giving her experience in front of the Supreme Court and giving her experience that virtually guarantees confirmability.  Coupled with the fact that Kagan has served in two Democratic administrations, we clearly know who she is despite the lack of a paper trail.  She's a Democrat.  In general terms, she will support the President's legislative agenda.  And given Obama's judicial philosophy, she will defer to Congress, assume that laws are constitutional, defer to agencies, and may be moderately liberal on hot-button social issues.

3.  I'm not sure why people would get excited about this, on either side.  She's the Obama nominee, and Obama is boring.

4.  I could be wrong about some or all of the above.

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7 responses to “Justice Kagan (Joe)”

  1. Sujatha

    Watching Greenwald pillory Kagan over her views on executive power and the trial of terrorist suspects based on her statements during the SG confirmation hearings, and Lessig’s defense of her on The Rachel Maddow show yesterday, it didn’t seem like she would appeal to the left of center crowd at all. Neither did the clip that RM played of her attempt to present the case against Citizens United restricting ‘corporate speech’ to the counter-arguments of John Roberts seem very convincing about her abilities to sway the right-of-center justices to a more centrist view. But I think the latter is a bad example. Kennedy would be the target for such tipping-point judgements, not Roberts, Alito, Scalia or Thomas.

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  2. Dean C. Rowan

    “Obama is boring.” I only realized it yesterday in exactly so many words. Part of it comes with the territory, but Obama seems intent on cultivating a legacy of tedium, which may not be a bad approach to the aesthetics of politics. He wants to avoid interesting times. The Kagan nomination, however, while it fits the program in some respect, also risks injecting an overdose of cynicism into the process, pace Lessig’s vacuous defense of her. I’ve never thought Lessig was all that, but his RM appearance was a marvel to behold. He lacks the slightest sensitivity to irony.

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  3. Ruchira

    I agree with Dean that Obama assiduously wishes to avoid interesting times. A good thing too perhaps – given the legacy of the grand vision of the Bush-Cheney wrecking crew. So, Obama will act quietly, under the radar, control damage and perhaps slip in a substantive change or two while the right wing will continue to scream bloody murder every time he cocks an eyebrow. After a while, the public will learn to ignore the GOP’s habit of crying wolf.
    I think Elena Kagan is probably of the same mold. Smart, ambitious but will not rock any yachts on the placid waters of politics. But she is on balance a Democrat and will support Obama’s agenda.
    But you guys are getting “boring” wrong. While playing bland, both Obama and Kagan have a “naughty” side. Both are (or were) smokers and despite claiming to have kicked the habit, are known to sneak in a puff or two out of the public eye.
    As for a SCOTUS nominee who breaks the mold (gender,race, religion don’t matter), I doubt we will see “real” diversity coming to the bench any time soon.

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  4. Dean C. Rowan

    Smoking is boring, too. If they were sneaking a mainline now and then, well, that’d be “interesting.”
    So Lessig and Greenwald took the debate to Democracy Now. Greenwald is to my mind plainly correct, largely because he focuses on the evidence, not merely on his impressions, however well formed they may be. Lessig, meanwhile, works anxiously to explain why her propensity to “act quietly” is in fact a good thing in these very circumstances. I gather he believes holding one’s cards close to the chest is judicious behavior, and in theory I suppose that’s a good place to start. But his argument focuses on strategy, not data, strategy being the last refuge of an advocate of a losing side. “Let’s be realistic,” he prescribes. Learning the lessons of realism in this context sounds suspiciously like practicing the secret handshake, the wink, the nod, the fleeting gesture that signals one’s sympathies without publicly committing to them. Great. Just what we need in a judge.

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  5. Joe

    I agree with Dean that smoking is boring. Even as a personal quirk, or whatever you might call it — although I really meant that Obama is boring in his role as president. He way well me a fascinating guy as a person.

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  6. Ruchira

    Here is David Brooks in the NYT echoing Joe’s characterization of Elena Kagan as boring. Translation: too careful and calculating. Which also probably means that she will be confirmed. Perhaps, once she has the life time tenure, she will let loose her inner liberal. Possible? Sure. Probable? Who knows?
    A linguistic observation here. Brooks uses the adjective “prudential” to describe Kagan. Isn’t “prudent” the more apt choice here?
    Okay, so smoking is boring. But what is all this whispering about her sexual orientation? Does that make her more interesting? At least to some on the Senate Judiciary Committee? And who knew that playing softball is an indicator of one’s sexual preference?

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  7. Dean C. Rowan

    Damn straight, talk about sexual orientation is interesting! What the heck else are we here for? And what isn’t an indicator of sexual preference? Name one thing.
    Ugh, Brooks. Such a dweeb. And yet here I am today dressed in the exact pink shirt he wears in his Times photo, and there I was yesterday complaining about strategy, just as he does in the piece.
    I think he uses the right word. “Prudent” attributes a favorable quality of character. “Prudential” suggests the students are concerned about matters of prudence, but not that they actually behave prudently.

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