Top Menu

If Kagan’s the Choice, Obama Is on His Own

The Kagan kerfuffle regarding Goldman Sachs isn’t what bothers me about the potential, many consider it likely, appointment of Elena Kagan to the Supreme Court. There are far graver issues for me, one being her diversity hiring practices, which elevated white men over, well, everyone else, particularly qualified women. I’d no more support a Republican for SCOTUS with Kagan’s record than get behind a known anti women’s rights candidate. There are other issues as well.

However, progressive insiders aren’t really worried about Kagan’s conservative leaning, lack of diversity fetish. Matthew Yglesias on Twitter yesterday:

“Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”

Pres. Obama has not earned this wide open trust. To be blunt about it, progressives like Yglesias are part of the left’s problems. They bestow Pres. Barack Obama political prowess that he no longer deserves from those on the left.

It’s clear from Pres. Obama’s drive-by criticism of the great justices of the 1960s and ’70s that he’s less than appreciative of the importance the Supreme Court played in that era of liberalism to trust his judgment without a health dose of skepticism.

THE PRESIDENT: Well, I mean, here’s what I will say. It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

Digby wrote yesterday that she’s being told that Kagan is “the only confirmable possibility.

Really? Well that is interesting. The Obama stalwarts pressing the White House line that they’ve already lost the push for a political alternative to the court’s right, for which Pres. Bush campaigned and won, before Obama’s battle for the next nominee has begun.

More of the Obama penchant for cowardice in the face of a potential ideological skirmish worth having, especially when we’re talking about the highest court in the land that is packed to the teeth with political animals who now offer split decisions on everything that comes before them. Kagan’s non-record offering no clues to her ability to bridge the court gap, something that is sorely needed, which is why I prefer Diane Wood or even the long, long shot of Jennifer Granholm.

It’s clear to me that the left needs an issue negotiator, not an executive branch facilitating conciliator.

Glenn Greenwald has a round up of links on Ms. Kagan, which will allow you to read for yourself.

Along with obvious diversity blindness, Ms. Kagan’s place in one particular arena raises the hair on the back of my neck. An article bank in April, of which Greenwald reminded me, raised then answered one question in my mind: Supreme Court Watchers Wonder: How Conservative Is Kagan?

[...] Steve Vladeck, a professor at American University Washington College of Law, has spotted subtle changes in the briefing of some lower court cases that may have been approved, if not devised, by Kagan.

For example, Vladeck said, the new administration has “all but abandoned” a key Bush administration argument that the president has inherent constitutional powers to take broad steps in the war on terrorism. Instead, in the case of Mohammed v. Obama in D.C. district court last year, the Justice Department based its claim of authority more narrowly on the post-9/11 congressional Authorization for Use of Military Force. “Obama has put all his eggs in that AUMF basket,” said Vladeck — a significant shift. Warren of the constitutional rights center agreed that Kagan may be offering different rationales for the administration’s actions, “but it doesn’t make much of a difference.”

Vladeck has also noted that the Obama administration in some cases has been “much more willing” to accept international law and law-of-war standards for detention of aliens. On the other hand, Vladeck said, the Obama Justice Department has vigorously argued against habeas jurisdiction at the Bagram internment facility in Afghanistan, arguing that it is in a “distant and active war zone” and is therefore different from Guantanamo, where the Supreme Court ruled in favor of jurisdiction. Deputy Solicitor General Katyal argued against habeas rights at Bagram in the case of al Maqaleh v. Gates before the U.S. Court of Appeals for the D.C. Circuit in January.

I’ve been a lonely feminist supporter of Obama on Afghanistan. I’ve also heard and had many conversations about Bagram in the last year. However, the unknowns on Kagan supporting Pres. Obama’s Bushesque belief in executive power, especially in war zones like Afghanistan, is even more alarming, especially given the hidden disasters inside Bagram that have yet to get the light of day.

On some things I trust Pres. Obama. However, when it comes to other things it’s clear he’s willing to bargain people’s rights away, because of expediency, convenience (see health care), or lack of passion and purpose to defend them.

See Attorney General Eric Holder’s latest “flexible” philosophy on the rights of suspected terrorists for more proof.

“The [Miranda] system we have in place has proven to be effective,” Holder told host Jake Tapper. “I think we also want to look and determine whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront. … We’re now dealing with international terrorism. … I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that’s one of the things that I think we’re going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face.”

The Bush-Cheney era lives on.

No, thank you.

I’ve learned enough from what’s out there on Ms. Kagan, but also what’s left unknown, to simply be unwilling to help in this fight. If Kagan’s the choice, Pres. Obama is on his own.

, , , , , , , , , , ,

Comments are closed.
.... a writer is someone who takes the universal whore of language
and turns her into a virgin again.  ~ erica jong