The White House is trying — sort of — to push back on critics like Salon’s Glenn Greenwald, who argue that there’s nothing in Solicitor General Elena Kagan’s record that proves she won’t move the Supreme Court to the right once she gets there.
“Elena is clearly a legal progressive,” Vice President Biden’s chief of staff, Ron Klain, told reporters in a briefing on the nomination Monday morning, after I asked him to characterize her judicial philosophy. “She is someone whose scholarship has won praise from both those on the progressive side and those on the conservative side for its thoroughness and its practicality.”
Those two sentiments don’t necessarily go together, so another reporter asked what Klain meant when he declared her to be “clearly” a progressive. His answer:
I think Elena is someone who comes from the progressive side of the spectrum. She clerked for judge [Abner] Mikva, clerked for Justice [Thurgood] Marshall, worked in the Clinton administration, worked in the Obama administration. I don’t think there’s any mystery to the fact that she is, as I said, more of the progressive role than not.
White House officials say there’s plenty of paper to look through for anyone who worries Kagan isn’t committed to progressive causes — her speeches, her scholarly work, her track record in government and out of government as a lawyer. All that is out there, and obviously people will begin combing through it even more carefully this spring and into the summer, now that she’s been nominated.
Asked specifically about Greenwald’s critique, White House press secretary Robert Gibbs didn’t sound too concerned. “I hope that anybody that looks at this nomination will simply take a look at — as Ron said — the serious and rigorous legal career that Elena Kagan has had; what she brings to this job — her depth of experience; the fact that, as many suggested, we looked beyond somebody who’s simply a judge,” Gibbs said. “And I hope that throughout this process — this goes for somebody on the Internet or somebody sitting in the Senate — they’ll look at all of the facts and give the nominee a fair and just hearing.”
But the wan force behind those defenses may indicate the administration doesn’t really mind criticism from liberals. This is an election year, after all, and if Obama is taking heat from the left for nominating someone who’s too pragmatic and insufficiently ideological, independent voters may take notice. Klain kept alternating between calling Kagan a progressive and pointing out her “pragmatic lawyer’s approach” to the law. The message with this nomination is, basically: Don’t get alarmed.
Naturally, Gibbs denied there was ever any hint of political considerations in the Supreme Court search process. Even so. If you’re starting an office pool on which word starting with the letter “P” appears more often in White House talking points this summer, don’t bet on “progressive.”