Elena Kagan to Replace John Paul Stevens

It appears to be official that Elena Kagan is the choice to replace John Paul Stevens on the Supreme Court. Progressives are pretty uniformly underwhelmed. The consensus is that she’s an unknown quantity. Scott Lemieux writes that Kagan has “no judicial experience, very limited political experience, and no record of influential scholarship.” Glenn Greenwald writes, “Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”

On the other hand, James Doty writes that Kagan has spent her career working with or for liberals (clerking for Thurgood Marshall, for example, whom Kagan has called her “legal hero.”). Doty presents an argument that Kagan reliably will vote with the Court’s liberals on most issues.

While I share the opinion that President Obama could have seized the opportunity to appoint someone with a clearly liberal record, I’m withholding judgment on Kagan. The fact is, today’s liberals would have fought tooth and nail to keep John Paul Stevens off the Court, because his record as a judge in the federal court of appeals was moderately conservative.

And let us not forget that Earl Warren, who arguably pushed the court into being as liberal as it ever was, had been one of the primary movers behind the internment of Japanese Americans in World War II.

So, having read some background on Kagan, I can’t say I have a strong opinion one way or another. There’s no way to predict how she will vote.

Update: This comes under the heading of “Why African Americans vote for Democrats.” The Hill reports that the RNC is using a 1987 speech by Thurgood Marshall to slam Kagan. As explained above, Kagan was once Marshall’s clerk and also has praised him as her “legal hero.”

In the speech, Marshall — referring primarily to the infamous “three-fifths” clause — said the Constitution as originally conceived and drafted was “defective.” So now the RNC is circulating talking points that taunt Kagan — “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?”

I infer from this that today’s Republican Party wants to restore the three-fifths clause, since they don’t think the clause was defective. It ain’t the Party of Lincoln any more, is it?

18 thoughts on “Elena Kagan to Replace John Paul Stevens

  1. Found this with morning coffee, and have read part of it. Looks like it is worth perusing further:


    Her support for increasing executive powers gets no points with me, but then, I’m a progressive and therefore doomed to disappointment because of excessive idealism. I even suspect that altruism exists.

  2. With the potential for the Senate to have more Republicans after this year, I wish Obama had nominated a known and dependable Liberal. He could have nominated Moses himself today, and he’d still have a battle on his hands one way or the other. It’s a reflex thing with Republicans. Sure Dem’s do the same thing, but, except for Bork, eventually we compromise and do the bi-partisan Broder shuffle. They never do. We all knew what Alito and Roberts would be – open throated supporters of Corporatism. And still, they got a pass from the Democrats, who didn’t fight toot and nail against them.
    Still, in the future, it will be harder to get a Liberal on the SCOTUS and I wish Obama had tried that today. If he had drawn a line in the sand, far left of center, and said, “OK, You want to fight? Let’s fight over THIS!,” it might have motivated the base to come out and support D candidates across the country in November. People would have seen the frothing at the mouth by people who scream about “judical activisism,” yet who always put their own activists on the judiciary.
    Some experts I’ve read say it’s going to be a more low-key fight over Kagan than we anticipate. Well, sure, because she’s not a known Liberal quantity, and they can do some perfunctory complaining and whining – it’s their nature. But they won’t bring on the crazy like they would if we had a solid progressive to put up there.
    But, that wouldn’t be Obama.
    Oh well. You can’t say she’s a bad choice. She’s just not OUR choice.

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  5. Obama sold the nation, or at least the MSM, on the notion that no executive experience was necessary to become President. Now he wants to sell the notion that no judicial experience is necessary to sit on the Supreme Court. Having seen how the first experience is working. let see how the second one will work out.

    • David L — a number of supreme court justices had no prior judicial experience — forty of ’em, according to this article. Five of them were chief justices. These forty include the above-mentioned Earl Warren as well as justice William Rehnquist, Byron White, William O. Douglas, Felix Frankfurter and Louis Brandeis, as well as John Marshall himself.

      Do get yourself an education. There’s a lad.

  6. Agree with you that Kagan is a cipher, and it’s impossible to have much of an opinion about her at this point. To me that’s not the point.

    It says everything about Obama that, even with 59 Democrats in the Senate, he picks someone so colorless, the least unlikely to cause a stir. You know that a Republican president would show no such timidity in pressing their cause. This is an opportunity missed. It isn’t about Kagan, my beef is with Obama.

    OTOH, it is about Kagan, in a minor way, in the sense that she probably has opinions she’s carefully hidden over the years, in preparation for just this moment. I think it was Digby who pointed out that you don’t get to some high position at Harvard, with all the brainpower that entails, and to middle age without cultivating some opinions about how things are or should be.

    And I have to respond to David L’s puerile right wing jab about “Obama has no executive experience”. In the light of GW Bush’s tenure, our former wonderful MBA president, I’ll take Obama’s supposed lack of “executive experience” any day. At least Obama has the brains to not prance around on an aircraft carrier like some gotta-prove-my-macho junior varsity football hero, or give shoulder massages to foreign prime ministers, because he’s too dumb to do anything else. Sheesh.

    • moonbat — by the end of Dubya’s second term I was ready to settle for anyone who chewed with his mouth closed.

  7. “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?”
    No, it wasn’t defective at all. It was sooooo effective that the framers said, “Look, dis here ting is poifect. It is now set in stone. STONE! No changin’ nothin. No monkeyin’ wit it. ‘Cause if you try to change tings, well, we can’t speak to the health of your family forever. Kapeesh?”
    Uhm, didn’t they put in rules so that you could amend things, just in case they got anything wrong, or, like, maybe times changed? Or, is it that I’m still remembering what I learned from the old textbooks, not the new Tex-books?
    I swear, if I had any hair left on my head, I would tear it out.

  8. If the Constitution was perfect as originally written, why did the Founders go and propose 12 amendments* to it 15 months after it was ratified?

    *aka the Bill of Rights and two other amendments not ratified

  9. I guess, as c u n d gulag has pointed out, believing that the Constitution was perfect when it was first written would seem to negate any of the amendments that were added, including; the Civil War amendments, those pesky Bill of Rights, 19th Amendment (women’s vote), 17th Amendment (popular vote of Senators), and the list could go on. I actually believe this is an influence of the Religious Right, who go back to an inerrancy of the Scriptures, and an understanding of the original intent to fully get the meaning of the Bible.

  10. maha, my thoughts exactly; regarding the chewing thingie w/Bush.
    Right now, I’d like to see what went on behind closed doors with Cheney and his energy buddies. Fillet and release………..

  11. After reading Michael Steele’s statement regarding Kagan I have a better understanding of what Malcolm X meant by the term House Nigger. If Steele can’t see, or won’t see the defect that Marshall points out, than something is seriously wrong..I know they’re banking on America’s ignorance that the Constitution as conceived and ratified is sacrosanct and that any criticism of it is blasphemy, but the fact that slavery wasn’t abolished in the unamended Constitution screams defective.

  12. One of the big issues that has conservatives in an uproar is that she banned military recruiting on campus becauseof ‘Don’t-ask-Don’t-tell”. She seems to have taken a liberal view on gay rights. One might expect the same on women’s rights. At leasr I can’t think of anyone who advocates for the gay community who’s opposed to Roe v Wade. She’s YOUNG – the impact will survive many presidents. As you point out, the ACTUAL stance she will have over the years is quite unpredictable. My gut says she will be an excellent jurist.

    The REAL wuestion is whether Obama will be able to replace a Conservative judge in the next 6 years. This is pure speculation, but the decisions from the court will continue to split the wrong way until we gat a crack at repacing one of the neanderthals.

  13. Born in NYC, went to Princeton; Harvard Dean– the woman is no fool. She will be a billion times better than what ANY existing Republican would appoint.

    And, yes, the GOP would bring back the 3/5’s clause. Because they are racists; not because they are originalists.

  14. Me, I was kind of hoping-against-hope that our moderate balance-seeking centrist President would look at a Court featuring Thomas, Alito, Scalia and Roberts and think to himself, “You know, the nation could use some counterweight on the left over the decades remaining in their terms.” Maybe Kagan will be that counterweight, and the whole cipher thing is a cunning ploy to sneak a flaming leftie onto the Court. Or maybe she’ll be a disappointment, just like all the other times I’ve hoped Obama was playing 17-dimensional chess.

    At 50 years old, whatever she is, she’ll be there for a looong time.

    Politically, I wish Obama had nominated a flaming liberal, just to show he could, as a ‘brushback pitch’ to help reset the assumptions about where the middle should be.

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