The latest on Elena Kagan

Progressives prepare to back a Supreme Court nominee they know almost nothing about, while ignoring severe flaws

Topics: Elena Kagan, Obama's Supreme Court nomination, Washington, D.C.,

I’ve laid out my case against Elena Kagan as thoroughly as I could, but with several anonymous (i.e., unreliable) reports percolating that she’s the likely choice and could be announced as early as Monday, it’s worthwhile to note several recent items from others pertaining to her selection:

(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan’s record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): “Blank Slate.”

(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan’s relationship to Goldman Sachs.  That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street.  The Huffington Post‘s Sam Stein has more on the Kagan/Goldman Sachs connection.

(3) Following up on the article published yesterday in Salon by four minority law professors — which condemned Kagan’s record on diversity issues as “shocking” and “indefensible for the 21st Century” — Law Professor Darren Hutchinson of American University School of Law today writes that Kagan’s record is “abysmal.” 



Regardless of your particular views on these matters, that diversity is both vital and fair in the hiring process has long been a central plank in progressive thinking.  It takes little creativity to imagine what Democrats would say about a Republican Supreme Court nominee with a hiring record similar to Kagan’s.  The question is whether they will be as consistent as these law professors are in applying their claimed beliefs to their own side.  This is the issue that caused Linda Monk to rescind her endorsement of Kagan.  Will Kagan-defending progressives now suddenly say that diversity is irrelevant?  Will they try to claim that there were no qualified minorities for the Harvard Law School faculty?  How will they reconcile everything they’ve always said about diversity with Kagan’s record as Dean?

(4)  This headline, from law.com, is a darkly amusing and quite revealing one to read about the Obama White House’s front-runner to replace John Paul Stevens:  ”Supreme Court Watchers Wonder:  How Conservative Is Kagan?

(5) Law Professor Jonathan Adler persuasively argues why Diane Wood would be easier to confirm than Elena Kagan.

(6) The New York Times‘ Charlie Savage today explains that executive power is one key area where Obama’s choice could bring about major changes to the Court, given that his selection would replace Justice Stevens, who was so stalwart about imposing limits on such power.  As Savage writes, Kagan’s record (to the extent such a thing even exists) ”suggests she might generally be more sympathetic toward the White House than Justice Stevens.” 

(7) Perhaps most revealing of all:  a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows:  ”The reality is that Democrats, including liberals, will accept and push whomever Obama picks.”  Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality:  ”Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”

Just think about what that means.  If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence:  ”I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.”  In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice.  Isn’t that a pure embodiment of mindless tribalism and authoritarianism?  Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate. 

One of the very first non-FISA posts I ever wrote that received substantial attention (uniformly favorable attention from progressives) was this post, from February, 2006, about the cult of personality that subsumed the Right during the Bush era.  The central point was that conservatives supported anything and everything George Bush did, regardless of how much it comported with their alleged beliefs and convictions, because loyalty to him and their Party, along with a desire to keep Republicans in power, subordinated any actual beliefs.  Even Bill Kristol — in a 2006 New York Times article describing how Bruce Bartlett had been ex-communicated from the conservative movement for excessively criticizing George Bush — admitted that personal allegiance to Bush outweighed conservative principles in the first term and that “Bush was the movement and the cause.”  

To say that ”Democrats, including liberals, will accept and push whomever Obama picks,” based on the rationale that “Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama” — even if they know nothing about her, even if she might move the Court to the Right — seems to me to be an exact replica of what I described four years ago.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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