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What Are Elena Kagan's Values?

By Big Tent Democrat, Section Obama Administration
Posted on Mon May 10, 2010 at 09:09:53 AM EST
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One of the mistakes, in my view, of critics of President Obama's choice of Elena Kagan for the Supreme Court is their view that Obama is afraid to fight for his values. This gets it wrong imo. Obama has supple values, he is a pol after all. My surmise is that Obama hopes Kagan is like Cass Sunstein (and maybe Kagan has let him think so.) I hope she is not. For once, HOPE is the appropriate word. Glenn Greenwald writes:

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things [. . .]

(Emphasis supplied.) I vote for B. But what does this tell us about Elena Kagan? Not much in my view. Indeed, here is the perfect opportunity for the Senate to reseize its constitutional responsibilities of advise and consent, not rubber stamping of a President's choice for the SCOTUS. More so than any recent nominee, no one really knows what Kagan thinks about much of anything. As Glenn notes, the issue of the exercise of the advice and consent Constitutional responsibility of the Senate is one of longstanding for me:

The most important point to note about Kagan now is the one highlighted this weekend by Talk Left's Armando, as first reported by The Los Angeles Times: in 1995, Kagan condemned the Supreme Court confirmation process as "a vapid and hollow charade" and an "embarrassment," arguing that Senators should "insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that's especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything. She ought to be held to her own position and "reveal what kind of Justice she would make" and "disclose her views on important legal issues." I'm certainly willing to listen if she does that and then make a rational assessment of her based on those answers. Anyone wanting to form a rational choice should demand that she do the same.

I bet President Obama probably would learn a lot too.

Speaking for me only

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    Ugh (5.00 / 1) (#5)
    by lilburro on Mon May 10, 2010 at 09:39:58 AM EST
    "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center."

    I don't really know what to say about this old story, but in the beginning we were led to believe such "framing" would get us Diane Wood, instead of Kagan.  Talking to Rick Warren wasn't supposed to exclude the possibility of Diane Wood.  I am operating under the assumption that her pro-choice views are among the main reasons she was not chosen.

    I will see your "ugh," and raise you (5.00 / 2) (#16)
    by Anne on Mon May 10, 2010 at 10:10:12 AM EST
    a "Gak."

    No doubt Wood's pro-choice views were a factor, but I think a bigger factor could be this, as expressed by Glenn (from the same link in BTD's post):

    It's even less surprising that Obama would not want to choose someone like Diane Wood.  If you were Barack Obama, would you want someone on the Supreme Court who has bravely insisted on the need for Constitutional limits on executive authority, resolutely condemned the use of Terrorism fear-mongering for greater government power, explicitly argued against military commissions and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution on a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular?  Of course you wouldn't.  Why would you want someone
    on the Court who has expressed serious Constitutional and legal doubts about your core policies?  Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists -- and has seized the power to assassinate American citizens with no due process -- wants someone like Diane Wood on the Supreme Court?

    In my heart-of-hearts, I never expected Wood to be nominated, but she is exactly the kind of person the Court - and the country - need.

    I will be very interested to see (1) how tough the questoning is (will we have to rely on the GOP to demand that she answer detailed questions about her views on all issues?) and (2) how substantively she answers those questions.

    Since I am sure she will be confirmed with little difficulty, I can only hope she finally feels assured enough of her ultimate ambition that she opens up in ways that make me feel better, not worse.

    Parent

    digby on Kagan (none / 0) (#82)
    by MO Blue on Mon May 10, 2010 at 12:51:26 PM EST
    ...Strangely, though, you can't find anyone who knows what her views on the law, culture, society, morality, policy are. I suppose it's possible that she has none, but that's unlikely. You really can't reach her age without forming some opinions about the world and you can't reach her level without having any brains. So, it's likely that she's just been very, very careful not to let anyone know what she really thinks in anticipation of this day.

    The thing I'm hearing the most is that she and Obama are very much alike and that they have a strong personal relationship. So, if you like Obama's worldview and governing style, you'll like Kagan. I would expect a lot of split-the-baby opinions --- and we'd best keep our hopes up that Anthony Kennedy is a lot easier to charm than the Republican congress has been. link



    Parent
    Doesn't her lack of hiring minorities (5.00 / 1) (#7)
    by MO Blue on Mon May 10, 2010 at 09:44:08 AM EST
    bother you?

    When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century. link

    IIRC correctly 7% of her hires were of conservative or libertarian ideologoly. Much better than her demonstrated commitment to opening barriers for women and people of color.

    "Her lack of hiring" (5.00 / 1) (#69)
    by gyrfalcon on Mon May 10, 2010 at 12:26:37 PM EST
    I could be wrong, but I do not believe that the Harvard Law School Dean can do more than advise and consent on the hiring process.

    Don't you think we ought to find out for sure what her actual authority was on this before we castigate "her" hiring record?

    As I say, I may be all wet on this, but deans at Harvard typically do not have hiring authority, and I have read several times of Kagan's "advocacy" for this or that hire at the law school, which does seem to suggest she did not get to make the selections herself.

    Be careful when evaluating her record at Harvard because Harvard does many things differently from other universities and assumptions about the way things are set up there on the basis of standard practice elsewhere are often incorrect.

    Parent

    Better tell Obama (none / 0) (#76)
    by jbindc on Mon May 10, 2010 at 12:42:37 PM EST
    From Lynn Sweet's blog:

    Obama noted that, as dean at Harvard Law School "at a time when many believed that Harvard faculty had gotten a little one-sided in its viewpoint," Kagan recruited conservative scholars to join the faculty and tried to be a bridge over the ideological divide.


    Parent
    That faculty is powerful, of course (none / 0) (#77)
    by Cream City on Mon May 10, 2010 at 12:44:34 PM EST
    but "advise and consent" has a lot of power, too.

    The very construction of search committees -- the "advise" component, if you will -- is crucial in foreordaining the outcome.  And then, at least on paper and even at Harvard, the committees only make recommendations to which the dean consents to forward on up on the food chain.  Or not, but again, rarely does a committee constructed by the powers that be come up with candidates that are not the outcome expected by the powers that be.

    Frankly, if those who suggest that the Harvard Law School is so different, its faculty so powerful, that the dean is little more than a paper-pusher are correct, that concerns me about Kagan.

    Parent

    From what I've read... (none / 0) (#81)
    by Dr Molly on Mon May 10, 2010 at 12:51:11 PM EST
    (and, of course, it could be completely wrong), this was active recruitment and headhunting from the dean's office to try to diversify the faculty ideologically. So, it does sound like these hirings were, in a large way, her doings.

    That's not to say that she did a horrible job - we don't know how many or what kinds of people were asked, or interviewed, or declined offers. Sometimes, the best intentions to hire diverse faculty go awry because you just can't get them to come....

    Parent

    Agreed -- (none / 0) (#84)
    by Cream City on Mon May 10, 2010 at 12:56:07 PM EST
    although this is Harvard, so it is hard to imagine that it is harder there than at other law schools that have far better records and found fine scholars reflecting far more diversity.

    Parent
    Or, as my just-turned-12-yr.-old (none / 0) (#85)
    by oculus on Mon May 10, 2010 at 01:01:12 PM EST
    Latino tutoree asked me Saturday, Is Harvard the best college"

    Parent
    Best on a job resume (none / 0) (#94)
    by Cream City on Mon May 10, 2010 at 01:47:20 PM EST
    -- yes, in most cases.

    Best education?  Extraordinary in some, overrated in others . . . as I bet that you agree, but that may be difficult to explain to a kid.  

    Then again, this is a kid taking Latin, yay! And good for you for contributing to the cura personalis.

    Parent

    I tried to explain his in-state public (none / 0) (#95)
    by oculus on Mon May 10, 2010 at 01:49:41 PM EST
    universities offer a great education:  UCLA, UCSD, UC Berkeley.  I also mentioned colleges such as Harvard seek out smart minorities such as himself.

    Parent
    Dependent on his leanings of course (none / 0) (#105)
    by CoralGables on Mon May 10, 2010 at 04:31:13 PM EST
    and if you have leverage in that area, I would suspect you would push him towards Brown or Berkeley for the long term good and a liberal leaning future.

    Parent
    Good point. (none / 0) (#90)
    by Dr Molly on Mon May 10, 2010 at 01:32:29 PM EST


    Parent
    Mebbe, but how many (none / 0) (#86)
    by brodie on Mon May 10, 2010 at 01:02:32 PM EST
    minorities (or non-minorities for that matter) allegedly offered tenure-track teaching positions at HLS would turn down that juicy plum of an offer?  Very very few I suspect.

    Nah, on the hiring issue, I'm bothered, and I think as Dean she had plenty of clout in determining the outcome, search committee as a relevant factor or not.  

    It's one of those things I think one of the more liberal Dems will be asking her at the hearings.  And, frankly, I don't think she should answer using the offer-turndown excuse unless she's able to back it up with 3d party proof.  

    Parent

    That sounds right. (5.00 / 1) (#91)
    by Dr Molly on Mon May 10, 2010 at 01:33:01 PM EST
    I'm bothered by it too and, frankly, I don't why I'm making excuses for it!

    Parent
    Also, I would find it useful (none / 0) (#96)
    by Cream City on Mon May 10, 2010 at 01:53:23 PM EST
    -- if a reporter can be found willing to actually research how academe works -- to also explore the hiring in her years there of ad hocs.  

    I understand that Harvard is especially guilty (part of too large a group these days, huh?) of this form of underemployment, of unwillingness to hire for tenure or tenure-track positions . . . and too often, across academe, this is an evasive way to make it look like there are lots of faculty of color who actually are, as we say, "wage slaves" (and too often without health care, pension, and other benefits as well).

    If that occurred in her years as head of Harvard Law School, at the same time that the overall hiring record for actual faculty sinecures was so poor, that would be even more worrisome.


    Parent

    Really? (none / 0) (#88)
    by squeaky on Mon May 10, 2010 at 01:21:20 PM EST
    .... and I think as Dean she had plenty of clout in determining the outcome, search committee as a relevant factor or not.

    And the basis for this thinking? If you are correct, than clearly she is a sexist, racist, and ultra conservative, looking to set the clocks back 100 years.  

    When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century.

    Salon

    Parent

    The basis for thinking (none / 0) (#92)
    by brodie on Mon May 10, 2010 at 01:33:58 PM EST
    the Dean of the HLS is more than just a figurehead, and has some clout in faculty hiring?   Just my sense of it as an outsider looking at the Harvard pecking-order situation from afar.  I don't think they hire people at that level at Harvard or other majors just to march to the tune set by nameless people on committees.

    As for her hiring decisions, which I find very unfortunate as I noted from already having read the article cited, it could be something where she was almost too focused on trying to redress what may have been a gross underrepresentation of conservative law faculty, and based her new hiring solely on ideology to the exclusion of all else, until the situation was rectified.  If that's how it happened, she should woman up about it and note how the process was badly flawed.

    That's one possible rationale.  Could be some other benign explanations which don't necessarily mean she's 19th C in her attitudes about race and gender.

    Parent

    Well (5.00 / 1) (#93)
    by squeaky on Mon May 10, 2010 at 01:46:26 PM EST
    Given Kagan's scant record on other things, I would assume that she did not have carte blanch as dean of HLS.

    There is too much of a disconnect with the rest of what is out there, imo. Of course the article in question was politics, in that painting Kagan as a conservative was the argument for Wood, so it has to be taken with a grain of salt, or a pound..

    More likely, imo, the hires reflected a position from above. Otherwise, her record indicates that she is a right wing conservative, slam dunk. I find that impossible to believe.

    Parent

    Have you read (none / 0) (#97)
    by Anne on Mon May 10, 2010 at 01:56:27 PM EST
    bmaz today?

    From the post (which is scathing in its criticism):

    Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

    Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the "talking points" memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

    Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed "Elena Kagan's complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States", take a bow, you are correct.

    It is simply mind boggling Barack Obama and his coterie of supposedly enlightened, informed and experienced advisors would contemplate, much less fight tooth and nail for, an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan. They may be harsh words, but they are the absolute truth.

    From the "eating their lunch" rebuttal to the WH's talking points:

    The White House's primary response -- like the magician performing a trick--is to point our attention elsewhere. The White House says the hiring numbers are misleading because they do not reflect the number of offers that Dean Kagan made to women and scholars of color. But this seems a bit hard to believe. Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men? Do they really prefer to teach at less prestigious schools? Or if they only prefer not to teach at Harvard because of perceived hostilities to women and people of color, why is it that Kagan could somehow overcome these perceptions when it came to conservatives, but not women and people of color? After all, part of the praise for Kagan is that she made Harvard Law School welcoming again for conservatives--in this case, conservative white men.

    In order to assess whether Dean Kagan effectively reached out to women and scholars of color, we need the number of tenure and tenure-track offers she made to women and scholars of color. But the White House does not provide us the number of tenure and tenure-track offers that Dean Kagan made to women and scholars of color. In fact, they provide everything but those numbers. An honest defense would provide those numbers in the first instance. (The White House memo implicitly cites the privacy of the individuals who received offers as a basis for refusing to release names -- but we wonder how many law professors would be embarrassed by the public revelation that they turned down a Harvard Law School offer.)

    In a sleight of hand, the White House instead provides the statistics for the number of visiting offers made under Dean Kagan. A visiting offer, however, is hardly tantamount to an offer to join the tenured faculty. Many visits are not offered with an eye towards permanent appointment. In other words, "visiting professor offers" without actual offers for permanent hire do nothing to increase meaningful faculty diversity. Many visits are made simply because the institution needs a temporary person to teach a class; law schools call these "podium" visits. Moreover, many visitors are foreign law professors who are temporarily rounding out the school's curricular offerings. These foreign law professors could conceivably be cast as "minorities" in the American scheme, but such casting would be extremely misleading as many of these professors do not share the history and experiences of people of color in the United States and may not even identify as racial minorities, especially if they are part of the controlling majority or even minority in their own country.

    In any event, even if the visiting numbers were probative they could be seen as undermining the claim that Dean Kagan did what she could for faculty diversity. Apparently, there were women and minorities available to serve as visitors, but very few to actually hire permanently. When permanent offers are made by a law school faculty, it is the dean's charge to convince that person to come. What would it say of Dean Kagan's powers of persuasion that she could not attract more minorities and women with offers to join one of the most prestigious faculties in the world? Should we wonder about her ability to convince people to join her in other enterprises, when the rewards are not so obvious?

    There's lots more, and it's all worth reading; I'd be interested in hearing the take those in the academic world have to it.

    Parent

    When people do this: (5.00 / 2) (#98)
    by Emma on Mon May 10, 2010 at 02:46:42 PM EST
    an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan.

    it a) makes me not care what else they have to say and b) makes me think everybody hates white women.

    Unqualified?  Incurious?  Unmotivated?  It's BS.  She was a law prof at U of Chicago, a law prof and HLS, and Dean of HLS.  She was White House Counsel to Bill Clinton.

    Parent

    Why? (5.00 / 1) (#100)
    by squeaky on Mon May 10, 2010 at 03:11:53 PM EST
    Politics.

    bmaz is obviously lobbying for Wood.

    Parent

    Minor correction (5.00 / 1) (#106)
    by jbindc on Mon May 10, 2010 at 04:52:55 PM EST
    She was an Associate White House Counsel in the Clinton WH - not THE WH counsel

    Parent
    This is the same kind of reaction (none / 0) (#99)
    by Anne on Mon May 10, 2010 at 03:06:57 PM EST
    people had to questions about Obama's record when he was running for president, and many closed their eyes and ears and let his resume stand in for an actual record: he went to Harvard, he was the first black president of the Harvard Law Review, he taught ConLaw at U of Chicago, he was a state senator, he was in the US Senate...

    When someone is upfront about his or her opinion, it is often hard to dismiss the harsh language while reading the substance of the post - so perhaps bmaz erred in that regard.

    If nothing else, forget bmaz and go read the Salon rebuttal to the WH talking points, and draw your own conclusions about the hiring issues at Harvard under Kagan's tenure.  

    Parent

    Exactly (5.00 / 1) (#101)
    by squeaky on Mon May 10, 2010 at 03:14:34 PM EST
    People who desperately wanted Hillary to win POTUS characterized Obama in about the same terms as Kagan.

    My guess is that the same kind of comments are because the people making them about Kagan are lobbying for Wood.

    Parent

    I would love to have seen Wood (none / 0) (#102)
    by Anne on Mon May 10, 2010 at 03:41:52 PM EST
    nominated - do you think she would have been a bad choice?  Do you think her very public stands on some of the most important issues of the day, the numerous articles she's written, her record on the bench - in other words, her record - disqualify her for service in the Supreme Court?  Or render her less qualified than Kagan?

    One of the repetitive themes of why-we-should-keep-voting-for-Democrats has been "it's all about the Supreme Court," so, I had hoped Obama would take this opportunity, with a pretty solid majority in the Senate, to at least ensure that the Court does not move more to the right; I cannot say, with even a little bit of confidence, that this nomination does that.

    I've read the exchanges you've had with others here on whether Kagan's background is any reason to think she is more liberal than she appears from her thin record, but I am not convinced I can put as much stock in that as others seem to be doing.

    As for the Hillary factor, I feel no shame in saying that I thought she was more qualified to be president - why should I feel bad about that?  And I have no shame now in saying that I want someone who is eminently qualified to sit on the Court on the basis of record, not resume.  I know you may find this hard to believe, but I would be just as disappointed - maybe more so - had President Hillary Clinton nominated Kagan, and for all the same reasons I have today.  My disappointment in the Kagan nomination is not leftover and projected disappointment over Hillary's primary defeat, but concern over the unknown quantity she is, and puzzlement that, with other many more qualified candidates, Kagan was the choice; I'm not at all sure she is as "safe" a choice as people think.

    Only time will tell on the Kagan nomination, but if she does not prove to be the liberally-rooted justice some are so sure she will be, and if, as has been posited, Obama's next nomination may be someone even more acceptable to Republicans, I think we can eliminate from the Democrats' campaign strategy the "it's about the Supreme Court" meme, which is too bad, because, absent that, I think they are going to be floundering to give people reasons to keep voting for them.


    Parent

    Yes (5.00 / 1) (#104)
    by squeaky on Mon May 10, 2010 at 04:10:05 PM EST
    I think Wood would have been a fine choice, although I do like the fact that Kagan is younger..

    My point, and comparison with primary politics, is that much of the writing denigrating Kagan is politics, just like much of the writing denigrating Obama or Hillary was politics. The liberals who are writing denigrating words about Kagan are from writers pushing for Wood's nomination.

    I am fine with Kagan or Wood, just as I was fine given the choice of Obama, after Hillary lost the nomination.

    I believe that Kagan will be as liberal as Wood, or certainly liberal enough given what is possible today.

    Parent

    Well, there are valid reasons why (none / 0) (#107)
    by Anne on Mon May 10, 2010 at 05:43:55 PM EST
    the liberals - some of them, anyway - are opposed to Kagan, and that opposition should not preclude them from supporting other candidates, should it?  

    One can even be affirmatively for someone without having to compare him or her to someone else, as opposed to making the kinds of support-by-default, lesser-of-two-evils choices we've been faced with at the ballot box for far too long; I know we can't vote for our choice for the Court, but it's our Court, so I think we have an obligation to care about it.

    For the most part, I've tried to stay away from places like Politico and other sites that I think are abjectly political, and stick with writers who are grounded in the law, either as practicing attorneys, or legal academics or both - those with experience in the legal arena.  Granted, many of those I've been reading are liberals, but I was more interested in what liberals thought about those who were on the short list, and now I am interested in the specifics of their views on Kagan.

    I don't think there is any real chance that Kagan will withdraw, so I don't agree that those who support Wood are still pushing for her as a nominee; and even if she did drop out, I'm not sure Wood would be nominated in her place.

    I am very much hoping that Kagan gets a little closer to articulating her views than she has in the past; I have some concerns that someone who has been so circumspect for so long is not going to be at all comfortable peeling back the protective layers she's built up in that time.

    But, we shall see.

    Parent

    Fine To Oppose Kagan (5.00 / 1) (#108)
    by squeaky on Mon May 10, 2010 at 06:03:38 PM EST
    My point was the disparaging words, much like the empty suit characterization of Obama. Those types of characterizations are political machinations, nothing else.

    I don't think there is any real chance that Kagan will withdraw, so I don't agree that those who support Wood are still pushing for her as a nominee; and even if she did drop out, I'm not sure Wood would be nominated in her place.

    Were that true, many here would have dropped the disparaging characterizations of Obama....  and Hillary, after it was a done deal.

    Parent

    Where you and I part company is (none / 0) (#110)
    by Anne on Mon May 10, 2010 at 06:30:17 PM EST
    in the belief that Obama and Hillary were virtually indistinguishable; I didn't believe then, and I don't believe now, that the two were interchangeable, for reasons that have been discussed ad infinitum, and don't need to be resurrected here.  When she lost, you had no trouble transferring your support to Obama, but my objections to him didn't just disappear in a puff of smoke and magically morph into reasons to support him. And much of what I objected to then has proved to me, in the intervening two years, to be entirely valid - for me.

    I don't believe Kagan and Wood came off the same assembly line, either, and that is why, at least for now, and pending Kagan's performance in hearings, I am not willing to transform my objections to her into support.  One just cannot  equalize Kagan's record with Wood's - but she has the opportunity to make up for that - to some extent - by being more open about her views than she ever has been to date.  Given that it's a SC hearing, I'm doubtful Kagan will reveal much, and so we may be left with putting someone on the bench who is as unknown as anyone in my memory.

    Parent

    Not My Point This Time (none / 0) (#112)
    by squeaky on Mon May 10, 2010 at 07:07:50 PM EST
    More my point is that when one wants one person over another to win really badly, they often reduce the one that they do not to win to an absurd two dimensional, and quite disparaging caricature.

    This is what Emma was complaining about. Reducing Obama to an empty suit, or unqualified to be POTUS, seems a similar approach to the one some are taking towards Kagan.  

    Parent

    Of course Kagan's (5.00 / 2) (#103)
    by Emma on Mon May 10, 2010 at 03:44:36 PM EST
    resume is her record, in part.  I've conceded that we know little about Kagan's views from her writing, but something about her from her resume and the jobs she's actually held.

    I admit:  we know little enough about Kagan's views to make the comparison to Obama apt.  As I've said before:  Kagan is almost entirely a mystery on issues relevant to being nominated for the SCt.  That does not, in my view, translate to unqualified, incurious, and so forth.

    It's possible to take a position regarding Kagan that doesn't depend on denigrating her.  That that line is so frequently crossed makes me suspect misogyny rather than actual substantive concerns about Kagan or anything she may or may not have done while Dean of HLS.  So, I'm not so interested in following up to separate the wheat from the chaff.

    Parent

    I cannot speak to the law school (none / 0) (#109)
    by gyrfalcon on Mon May 10, 2010 at 06:12:01 PM EST
    but I can speak to the faculty of arts and sciences, which is the heart and soul of Harvard, and can tell you that the deans are literally not involved in the faculty hiring process.  To my knowledge, they don't even get veto power.  Only the president of the university has that, and it's only very rarely exercised.

    That may seem not to be credible to folks used to the way many other universities work, but it really is the way Harvard works.  The departments get to make their own decisions on new hires, and even the department chairmen (who, btw, are not permanent but serve I think it's five-year terms) don't have authority to do more than advocate and persuade.  They can recruit candidates, but so can others on the faculty, and those candidates all have to go through the department vetting process.

    I would suspect that the law school dean at Harvard is roughly in the position of a department chairman in that sense.

    But again, I don't know that for a fact and I may be utterly wrong.

    Faculty authority over academic matters is not just lip service there, it's very real and quite jealously guarded.

    Parent

    I would think, if that were the case, (none / 0) (#111)
    by Anne on Mon May 10, 2010 at 06:40:00 PM EST
    that someone would have gone to great lengths to explain the process and separate Kagan from it as much as possible; how hard would it have been to say, "while the hires were made over Kagan's signature, the actual decisions about who would be hired were made by the chairpersons of the particular department, or by a vote in the such-and-such a committee."  

    Instead the WH has focused on trying to get Kagan out of this sticky wicket by playing games with the numbers - it may be valid to include those to whom offers were made but not accepted, but it's stretching things a bit, and as some have pointed out, how many qualified people in general do you think would have turned down an offer to teach at Harvard Law School?

     

    Parent

    Maybe (none / 0) (#113)
    by Emma on Mon May 10, 2010 at 08:38:03 PM EST
    the White House doesn't think it's a real concern.  Maybe the White House is engaging in more dissing of the left.  Maybe the White House doesn't think saying Kagan had no real authority as Dean is a good talking point.  Maybe the allegations are deliberately misleading.  Maybe the White House won't need to do anymore than it has done to address this issue during the confirmation process.

    I vote for the last "maybe".  I suppose the explanation one arrives at depends a great deal on one's beliefs about the Obama White House's relationship to the left and identity politics.

    Parent

    Agreed (none / 0) (#114)
    by gyrfalcon on Mon May 10, 2010 at 09:14:25 PM EST
    Plus it seems to now have become an article of faith for Democrats that getting "into the weeds" of any issue is a mistake.

    The Obama administration overall has been terrible at explaining itself in enough detail on almost everything.

    Parent

    Don't know the answer to (none / 0) (#115)
    by gyrfalcon on Mon May 10, 2010 at 09:19:20 PM EST
    your question, Anne, though I tend to agree with Emma's observations.

    All I'm saying is I've not heard word one about the actual hiring authority and process at Harvard Law in all this, and have good reason to suspect Kagan's role was at least somewhat limited.

    I'd really like to know the facts of it, frankly.

    My guess actually is that if Kagan in fact did have sole hiring authority, there would have been a lot more minorities and women hired.  It's overwhelmingly the old boy tenured faculty who have trouble seeing the qualifications of, shall we say, less traditional hires clearly, not the administrators.

    Parent

    IIRC, BTD has written that this is a major (none / 0) (#8)
    by observed on Mon May 10, 2010 at 09:45:57 AM EST
    problem with her nomination.
    My memory is pretty good, btw.

    Parent
    I don't think we should assume anyone's motives (none / 0) (#19)
    by vicndabx on Mon May 10, 2010 at 10:13:40 AM EST
    and I think this comment from the article BTD links to sums it up for me:

    "Whether qualified blacks, Latinos or Native-Americans were turned down for positions at Harvard Law is not a matter of 'belief,' but one of fact. The way to prove the truth of the assertion is to identify those candidates"

    Considering her background, her actual views on this is anybody's guess.  I'd be interested to hear her answers on this question should it arise, but I won't be waiting w/bated breath - I doubt you'd hear the true answer anyway.  I will say that it is likely this argument goes nowhere since the person who nominated her was black.

    Parent

    I agree (none / 0) (#32)
    by Capt Howdy on Mon May 10, 2010 at 10:40:29 AM EST
    I would like to hear what she has to say about this.

    Parent
    Even Jeffrey Toobin (5.00 / 1) (#9)
    by Maryb2004 on Mon May 10, 2010 at 09:47:06 AM EST
    who is a personal friend of hers says he doesn't know much about what she believes.  Which seems odd.  

    "Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she's a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery."

    Most Likely She Doesn't have a lot of judicial (none / 0) (#17)
    by Dan the Man on Mon May 10, 2010 at 10:11:20 AM EST
    views.  Do most lawyers spend a lot of time thinking a lot about the subtleties of the Dormant Commerce Clause or the intricacies of anti-trust laws?  Most likely, on non hot-button issues (e.g. abortion, etc) she doesn't have any views.  Since she's never been a judge, she's never had to make decisions about them.

    As for the argument, that because she is Jewish, from New York, and was at Harvard, therefore, she HAS to believe certain things, well that's a silly argument.  If one were to actually accept that argument, one might as well conclude that her view on the War on Terra is like Alan Dershowitz's.

    Parent

    Silly? (5.00 / 1) (#24)
    by squeaky on Mon May 10, 2010 at 10:30:50 AM EST
    As for the argument, that because she is Jewish, from New York, and was at Harvard, therefore, she HAS to believe certain things, well that's a silly argument.

    Not sure about Harvard, but a for Jew growing up on the upper west side of Manhattan one can tell quite a bit. That area is a liberal bastion of America. No conservative, center would be comfortable living there. That is what the upper east side is for.

    Unless she had a radical change like some of the neocons, which is hardly likely, there is no way that those years living on the upper west side did not influence her to be a solid liberal.

    Parent

    I'm very upfront about the fact (5.00 / 1) (#27)
    by andgarden on Mon May 10, 2010 at 10:34:42 AM EST
    that I used identity politics as a heuristic to make a preliminary judgement about her. Everything else I've read has confirmed that view.

    Parent
    Yes (5.00 / 1) (#29)
    by squeaky on Mon May 10, 2010 at 10:37:34 AM EST
    I agree. The upperwest side is an area I cut my teeth on and know quite well.

    I do not see Kagan straying from that mold in anything I have read about her.

    The only odd thing was the thing about there being no constitutional right to same sex marriage..

    Parent

    Elena Kagan and "no constitutional (5.00 / 2) (#54)
    by KeysDan on Mon May 10, 2010 at 11:05:45 AM EST
    right to same sex marriage". My understanding of that position, as I recall from her written statements to Senator Arlen Specter, then a Republican on the Senate Judiciary Committee, as a part of the Solicitor General confirmation process, was a nuanced one, in that she was doing some of that definition of what is, is stuff.  I sensed that nominee Kagan was, with safety, saying that the founding fathers did not explicitly set forth a equal protection place for Adam and Steve in the marriage department, but she did say that rights are a product of how the courts, citizens and elected officials interpret the constitution.  Now she will be a better place to help make that product for Adam and Steve and others of the same affectional orientation.  But don't tell Glen Beck I said so.

    Parent
    and then (5.00 / 1) (#57)
    by Capt Howdy on Mon May 10, 2010 at 11:15:03 AM EST
    there is the rights biggest beef, that she stopped on campus recruitment because of the gay policy of the military.

    Parent
    Yes, but she used a similar tact (none / 0) (#62)
    by KeysDan on Mon May 10, 2010 at 11:46:47 AM EST
    in that same letter to Arlen Specter, referenced above. Ms. Kagan's statements and actions while at Harvard, were that she found the DADT policy "profoundly wrong", and favored the overturn of the Solomon Amendment.  To Specter, she said that the US was on solid legal grounds in its previous positions to uphold the military ban on gays serving openly: "These findings satisfy the Equal Protection Clause's rational basis test and the government accordingly has had broad success in defending DADT policy and its associated statute against constitutional change."   True, based on positions of the military and what happened, to date, in Courts.  But, the positions are reconcilable; one what is, and one what should be.

    Parent
    They have to (none / 0) (#63)
    by jbindc on Mon May 10, 2010 at 11:56:16 AM EST
    Make a ruckus about something - their constiuents expect it.  But since 7 Republicans voted for her SG nomination, they will vote for hernia, barring any bombshells.

    Parent
    Well, Not Exactly (none / 0) (#65)
    by squeaky on Mon May 10, 2010 at 12:02:54 PM EST
    Although I believe her heart was in the right place..  She bowed to Larry Summers, and allowed recruitment, albeit not in the ROTC office that was in her building...

    Details here, via CreamCity

    Parent

    Oh (none / 0) (#66)
    by squeaky on Mon May 10, 2010 at 12:06:31 PM EST
    And this final sentence of the NYT article, fails to qualify her statement:

    During her confirmation hearings last year to become solicitor general, she said she would uphold Solomon.

    As solicitor general she promised to uphold the laws of congress.

    As SC Judge, this promise no longer applies, imo.

    Parent

    She's a more accomplished, more (none / 0) (#31)
    by andgarden on Mon May 10, 2010 at 10:39:40 AM EST
    circumspect, female, Jerry Nadler. I haven't read anything to convince me otherwise.

    If you gave her a truth serum, I doubt if her views on most issues would differ from mine.

    Parent

    But (none / 0) (#37)
    by CoralGables on Mon May 10, 2010 at 10:45:12 AM EST
    "The only odd thing was the thing about there being no constitutional right to same sex marriage.. "

    She is correct though. That is a true statement.

    Parent

    Hopefully the SCOTUS will eventually (none / 0) (#60)
    by MyLeftMind on Mon May 10, 2010 at 11:41:22 AM EST
    identify a constitutional right to same sex marriage based on either the equal protection clause in the Fourteenth Amendment or encompassed within the constitutional guarantee of privacy and liberty.

    Parent
    I did not make this (none / 0) (#25)
    by Maryb2004 on Mon May 10, 2010 at 10:31:13 AM EST
    argument:  "As for the argument, that because she is Jewish, from New York, and was at Harvard, therefore, she HAS to believe certain things, well that's a silly argument."

    Nor did Toobin.  So you must be responding to the wrong person.  

    Parent

    He id Responding To (none / 0) (#26)
    by squeaky on Mon May 10, 2010 at 10:34:28 AM EST
    Something andgarden said. Seems to me, less a non-sequitur, than a preemptive answer to a challenge that did not seem to materialize.

    Parent
    If it's a response to me, it's a (none / 0) (#28)
    by andgarden on Mon May 10, 2010 at 10:35:59 AM EST
    mischaracterization. I think her background is a strong indicator of her values, but that indicator is rebuttable.

    Parent
    When it comes to Supreme Court (5.00 / 1) (#35)
    by Maryb2004 on Mon May 10, 2010 at 10:43:13 AM EST
    nominations, the question is what type of rebuttable presumptions there should be.  

    Is it reasonable to presume that anyone nominated by a President is basically qualified for the position and the burden would be on Congress to show lack of qualification before they withheld approval on that basis?  I could make that argument. But with some very narrow limits.  

    Is it reasonable to presume a nominee's values from their ethnic and geographical background and make Congress rebut that presumption?  You would have to convince me of that.  I don't see it.

    Parent

    In order (none / 0) (#38)
    by andgarden on Mon May 10, 2010 at 10:45:14 AM EST
    Is it reasonable to presume that anyone nominated by a President is basically qualified for the position and the burden would be on Congress to show lack of qualification before they withheld approval on that basis?  I could make that argument. But with some very narrow limits.  
    For me it depends on the President making the appointment.

    Is it reasonable to presume a nominee's values from their ethnic and geographical background and make Congress rebut that presumption?  You would have to convince me of that.  I don't see it.
    Again, it depends. Kagan's bio and background just raise too many green flags for me to ignore.

    Parent
    You are making this specific (none / 0) (#45)
    by Maryb2004 on Mon May 10, 2010 at 10:55:22 AM EST
    but I'm asking the question in general.  This isn't a criminal trial in which we are trying to take something away from a nominee.  We are trying to GIVE the nominee a lifetime appointment to be one of the most powerful people in the country.   Should there be ANY presumptions by Congress?  (I assume that if there are any, they would be rebuttable.)  

    Parent
    No (none / 0) (#47)
    by squeaky on Mon May 10, 2010 at 10:57:59 AM EST
    There should be no presumptions by Congress. From the rest of us, well maybe since we are all just jawboning.

    Parent
    The Senate? Probably not, no. (none / 0) (#48)
    by andgarden on Mon May 10, 2010 at 10:59:07 AM EST
    At least, no more so than they use the nominating President's party to make presumptions.

    Parent
    So (none / 0) (#53)
    by Maryb2004 on Mon May 10, 2010 at 11:04:07 AM EST
    when you say "I think her background is a strong indicator of her values, but that indicator is rebuttable."  you are speaking only of yourself and not the Senate process?  Good.  

    Of course the actual process in the Senate will be just like yours - entirely political.  

    Parent

    Well, (none / 0) (#56)
    by andgarden on Mon May 10, 2010 at 11:11:20 AM EST
    Unlike judges, Senators do not have to give us a good reason for their decisions, or really any reason at all.

    I would hope at the end of the day that they have good reasons, though.

    Parent

    Well (none / 0) (#46)
    by squeaky on Mon May 10, 2010 at 10:56:37 AM EST
    Is it reasonable to presume a nominee's values from their ethnic and geographical background and make Congress rebut that presumption?

    There can always be mitigating and supporting facts, which either suggest that a person" "tribe" had left a mark faint or strong, but when the person comes from your own "tribe", I do believe that it is reasonable to generalize about their values, without ever having met them.

    Parent

    Exactly (5.00 / 1) (#49)
    by andgarden on Mon May 10, 2010 at 10:59:37 AM EST
    I get the strong sense that she's "my people." So sue me.

    Parent
    Yeah (5.00 / 1) (#51)
    by squeaky on Mon May 10, 2010 at 11:00:41 AM EST
    Me too..

    Parent
    exactly (none / 0) (#30)
    by Capt Howdy on Mon May 10, 2010 at 10:39:28 AM EST
    as I said before just because there is no trail doesnt mean they dont know what she thinks:

    In addition to attending the same law school as the president and previously clerking for one of his important Chicago supporters, Abner Mikva, she also previously worked as a special counsel to now-Vice President Joe Biden when Biden served on the Senate Judiciary Committee.



    Parent
    Well (none / 0) (#33)
    by squeaky on Mon May 10, 2010 at 10:41:36 AM EST
    This is what I thought Dan The Man was responding to:
    I consider it supremely unlikely that a Jewish woman from New York who clerked for Thurgood Marshall and has worked in two Democratic Administrations is some kind of closet conservative. Though I admit that it's a remote possibility
    .

    Parent
    Notice how very different that is from (none / 0) (#34)
    by andgarden on Mon May 10, 2010 at 10:42:55 AM EST
    As for the argument, that because she is Jewish, from New York, and was at Harvard, therefore, she HAS to believe certain things, well that's a silly argument.

    I actually agree with that statement. It happens to attack a man of straw.

    Parent

    Well (none / 0) (#44)
    by squeaky on Mon May 10, 2010 at 10:52:06 AM EST
    Had I more time I would have been more succinct. The kernel, reminded me of words you wrote, not the argument. It appeared to me that Dan The Man, may have been responding to anyone who argues that you can tell something about someone by their background demographics, etc..

    I do not know that your previous comment was even read by Dan The Man.

    Parent

    Which is why (none / 0) (#64)
    by jbindc on Mon May 10, 2010 at 11:58:37 AM EST
    It might be nice to get a nominee that is not Ivy educated and is from somewhere other than the I-95 corridor.  (Oh wait, we have Thomas from Georgia and Kennedy - a left coaster)

    Parent
    Jeff Toobin went to (none / 0) (#71)
    by gyrfalcon on Mon May 10, 2010 at 12:28:39 PM EST
    law school with her and they were part of the same small study group.  He has kept in touch with her since then, but I'm not sure it's entirely accurate to call him a "personal friend" in any meaningful sense.

    Parent
    My take on Elena Kagan is that (5.00 / 2) (#11)
    by KeysDan on Mon May 10, 2010 at 09:52:07 AM EST
    she will be an excellent associate justice reflecting progressive values in her opinions. Not like a Pam Karlan or Kathleen Sullivan, but still progressive.   My thinking is based on a mix of background and hope  Background that includes her stellar professional entry credentials, her working with a favorite of mine, Judge Abner Mikva and then  Justice Marshall, her nomination (that withered) to the DC Court of Appeals by President Clinton, and, her accomplishments during the Harvard Law deanship.  Hopes that include using that background to advance the law for citizens who are not incorporated, freedom of thought that supreme court independence should bring (without influences of a Larry Summers, for example, in the less attractive aspects of her deanship) or constraints as Solicitor General.  But, it will be a wait and see situation--we will certainly not learn any more about her views during the confirmation process, and her work, as noted in past instances of SC appointments, may not bloom until President Obama is out of office.

    She's a mystery (5.00 / 2) (#12)
    by Emma on Mon May 10, 2010 at 09:54:46 AM EST
    But she's no Harriet Miers.  Her substantive accomplishments surpass Miers', even if we know as little about her views.

    I generally like Greenwald, but his comments about Kagan have been nothing but conjecture where he uses the lack of record to surmise the worst outcome.  Oppose Kagan because she has no record, sure.  But don't oppose her because her lack of record allows you to make up flights of fancy about what you think she might believe.

    Mebbe (none / 0) (#13)
    by Big Tent Democrat on Mon May 10, 2010 at 09:58:23 AM EST
    As I have written before, I think Obama and Greenwald are wrong on Kagan, she will likely be  pretty liberal.

    But opinions are a dime a dozen. Faith based evaluations are not my cup of tea. Let her testify openly, frankly and extensively on her views.

     

    Parent

    That would be nice (none / 0) (#14)
    by Emma on Mon May 10, 2010 at 10:09:47 AM EST
    Let her testify openly, frankly and extensively on her views.

    I expect it won't happen, though.  That's not how things work, anymore.  If indeed they ever did.  

    We know something of Kagan from her career path, and little of Kagan from her writing.  It seems that Dems have become convinced that "winning" means being a cipher.  So be it.  I have no power to make anybody change.  And every time I try to exercise what power I do have -- withholding my vote, for example -- there's always somebody to castigate me for it.  So, we get what we (collectively) accept -- somebody who we "hope" will be the next Kennedy or the next Marshall.  But those days are gone, I think, so it's easier to just be an observer.

    Parent

    Really? (none / 0) (#15)
    by jbindc on Mon May 10, 2010 at 10:09:54 AM EST
    How do her accomplishments surpass Harriet Miers'?

    I think they are both accomplished women who probably should not have been SC nominees because of their lack of a paper trail.

    I'm tired of taking everything on faith  - wait until Ovama gets in office to see what he'll do, wait until we have a supermajority in the Senate, wait until Kagan goes against Scalia.

    Bah.

    Parent

    I don't (5.00 / 3) (#20)
    by Emma on Mon May 10, 2010 at 10:14:57 AM EST
    believe Miers was Dean of Harvard or any law school.  And I don't believe Miers had the same clerking experience as Kagan.  Nor, I believe, did Miers have the same amount of experience working in two White Houses in significant policy and legal roles.

    If I'm wrong, please let me know.

    Parent

    She had different (none / 0) (#22)
    by jbindc on Mon May 10, 2010 at 10:25:20 AM EST
    Yet just as valid experience.  Clerking, plaintiff's attorney, big law partner, city council member, president (first woman) of Texas State Bar, chair of ABA committee, presidential counselor, head of Texas Gaming Commission.

    Look, it isn't about Miers, but for people to keep saying things like "Kagan's at least no Miers" is a bit disingenuous.  Neither really a history of letting us know their policy stands (although many people keep saying we need a different perspective and need to go outside the judiciary for an SC nominee). But both are successful, intelligent women who were not loved by the base of their respective parties.

    Parent

    Some of that (5.00 / 2) (#36)
    by Emma on Mon May 10, 2010 at 10:44:39 AM EST
    I didn't know, particularly the clerking.  Do you know for whom and when?

    I don't find the ABA, State Bar, city council, and TX gaming commission to be particularly relevant or impressive resume points, particularly in regard to a SCt seat.  YMMV, and that's fine.

    Also, "presidential counselor" is not equivalent, IMO, to Kagan's White House service for 2 Presidents.  Again, YMMV, and that's fine.

    I think on resume, Kagan has more qualifications than Miers.  I think Miers was nominated b/c she was a personal friend of Bush and b/c she would be a politically solid ally on the Court.  It remains to be seen if those are Kagan's chief qualifications as well, regardless of her resume.

    Also, I didn't say "at least she's no Miers", which would imply support for Kagan and denigration of Miers in comparison.  I am neither a supporter nor a detractor re:  Kagan.  I was responding to the criticism that she's just like Miers, i.e. uniquely unqualified to be on the Court.  That repeated comparison is starting to have a whiff of misogyny to me, especially when the most virulent criticisms of Kagan (Greenwald, IMO) are based on nothing of substance and rely entirely on speculation.

    IMO, Kagan is more objectively qualified for the Court than Miers.  You can disagree, but at least you rely on Miers' resume and your response seems to be  more about how Miers was qualified than about how Kagan is unqualified.  There's a difference there that I acknowledge.

    Parent

    I think Kagan is far (5.00 / 1) (#42)
    by brodie on Mon May 10, 2010 at 10:49:27 AM EST
    and away more objectively qualified than Miers.  But at least back in 2005 the senate gave her a chance to show that even lowly SMU Law grads were also capable of handling the tough job of SC Justice.  Alas, she failed that rather easy preliminary round test, and quite badly according to Sens Leahy and Specter.

    Parent
    "a whiff of misogyny" (none / 0) (#59)
    by nycstray on Mon May 10, 2010 at 11:29:02 AM EST
    I'm waiting to see how far they'll go this round with the misogyny in the process. . . .

    Parent
    Upon rereading my initial comment (5.00 / 1) (#41)
    by Emma on Mon May 10, 2010 at 10:48:07 AM EST
    I see that "But she's no Harriet Miers" implies the exact type of dengigration + boosterism I disavowed later.  Please take my later statements as my actual position and accept that the first statement was not well thought out and poorly stated.

    My apologies, and I now see clearly that your criticism is warranted.

    Parent

    Not to go back around on this (none / 0) (#23)
    by andgarden on Mon May 10, 2010 at 10:27:51 AM EST
    but the point is that hardly anyone knows about Miers's actual resume (which is impressive by any reasonable standard). All that most people know or think about is how she was presented: as a totally unqualified crony.

    When people invoke Miers, they are almost certainly talking  about the latter.

    Parent

    And Miers proved (5.00 / 2) (#39)
    by brodie on Mon May 10, 2010 at 10:45:18 AM EST
    she was an unqualified Bush crony when she couldn't even pass the softball interview with senators portion of the exam.  It confirmed that she'd received a 2d (or even 3d) rate legal education, and hadn't thought much about major legal issues since then, nor did she seem to have a clear idea about the Ct's recent history and its leaders in that time.

    Kagan may not end up answering all senators questions on major legal matters, but she's likely to answer in ways that reflect a solid and impressive understanding of the subject matter.  Poor Harriet just was out of her league.

    Parent

    Indeed (none / 0) (#40)
    by andgarden on Mon May 10, 2010 at 10:47:08 AM EST


    Parent
    Also (5.00 / 2) (#21)
    by Emma on Mon May 10, 2010 at 10:20:49 AM EST
    I'm not taking anything on faith.  I would hardly call the scant bit I've written on Kagan an endorsement of her or of "wait and see".  I do think Greenwald's overreaching in his arguments, but that's about Greenwald, not Kagan.

    Meh.  Think what you want about Kagan and hopey-changey memes.  My only point is that the hysteria about her moving the Court to the right seems to be founded in no evidence at all.  That is what I object to.

    Parent

    Her Times profile (5.00 / 2) (#18)
    by andgarden on Mon May 10, 2010 at 10:13:04 AM EST
    confirms what I already believed:

    [A]s a young writer for The Princetonian, the student newspaper at Princeton, Ms. Kagan offered clear insight into her worldview. She had spent the summer of 1980 working to elect a liberal Democrat, Liz Holtzman, to the Senate. On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Ms. Holtzman lost to "an ultraconservative machine politician," she wrote, named Alfonse D'Amato.

    "Where I grew up -- on Manhattan's Upper West Side -- nobody ever admitted to voting for Republicans," Ms. Kagan wrote, in a kind of Democrat's lament. She described the Manhattan of her childhood, where those who won office were "real Democrats -- not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government."

    OK, so it was the 80s. But does anyone seriously believe that her ideology has changed? It's not as though she went off to join the Bush Administration or something.

    I'm already moving (5.00 / 0) (#50)
    by brodie on Mon May 10, 2010 at 11:00:19 AM EST
    from Not Suicidal over Kagan to Somewhat Positively Inclined, despite some flak from Glennwald and others.

    Liz Holtzman was one of my favorite contenders back in my youth, and she could have made an outstanding liberal senator from NY for all these yrs (alas).  And Kagan's understandable and familiar negative reaction to Reagan's victory puts her ahead of some perceived progressives of that time who weren't at all upset over Raygun taking over, namely Ralph Nader and Gene McCarthy, people whom Glennwald probably favors.

    I do wish though that Kagan had hired faculty with more than just ideological diversity in mind at HLS.

    Parent

    I'm already tempering my enthusiasm (5.00 / 0) (#52)
    by andgarden on Mon May 10, 2010 at 11:01:47 AM EST
    out of the concern that the Republicans will read the same signs I am, and successfully block her.

    Parent
    Let he be a stealth candidate for us! (none / 0) (#73)
    by MKS on Mon May 10, 2010 at 12:32:16 PM EST


    Parent
    "her" (none / 0) (#79)
    by MKS on Mon May 10, 2010 at 12:47:26 PM EST


    Parent
    Yes. good article (none / 0) (#72)
    by MKS on Mon May 10, 2010 at 12:31:47 PM EST
    Very reassuring....

    This is another excerpt:

    A history major, Kagan had a strong interest in political history -- especially labor movements and radical politics -- and was passionately committed to her studies. History professor Sean Wilentz, who advised Kagan on her senior thesis, described her as "one of the most extraordinary people I've met in my life, let alone teaching at Princeton."

    Sean Wilentz was a huge Hillary backer....And testified before Congress in a scathing rebuke against the Republicans.....

    Another excerpt that is intriguing:

    In her capacity as editorial chairman during her junior and senior years, Kagan spent nearly every evening at the `Prince' newsroom. But Bernstein cautioned that Kagan likely did not write all the editorials. "That wasn't her style ... She was a very collaborative person," he said.

    One set of unsigned editorials published in the spring of 1980, written in response to the federal government's discussion of reinstating draft registration, attacked the militaristic identity the country was headed toward. The nation was "unfortunately" moving toward "an era in which myopic and over-sensitive `national pride' precludes the thoughtful search for alternatives to an unnecessary draft registration," it said.

    The pieces also criticized President Jimmy Carter, claiming that "the president has always been a better campaigner than a leader, and he is flagrantly using the present crisis to further his own chances for reelection ... In riding the wave of public patriotism and mass support for registration shown in the polls, the president is shutting his eyes to the dangers inherent in his own policy." In July of that year, Carter signed a proclamation that reinstated the requirement that males aged 18-26 register with the Selective Service.

    One could safely assume that she agreed with this...

     

    Parent

    Yup (none / 0) (#74)
    by andgarden on Mon May 10, 2010 at 12:33:34 PM EST
    I don't need a neon sign. But I hope the Republicans do.

    Parent
    Yes, she will say that was a long time ago (none / 0) (#78)
    by MKS on Mon May 10, 2010 at 12:45:27 PM EST
    I hope this stays somewhat under the radar....

    I agree: her views seem pretty clear to me....strong and principled....yet quiet....could be very, very good choice....

    Parent

    I think that (5.00 / 2) (#43)
    by Dr Molly on Mon May 10, 2010 at 10:51:05 AM EST
    some of the criticism on Kagan from Greenwald is fair, and some of it is unfair. But, boy, does this touch a nerve for me:

    The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things [. . .]

    I guess that's part of why I was advocating for Wood over Kagan (without hope, though):  why can't democrats unashamedly stand up for liberal values, in the open, without apology, because those values are correct?

    Kagan is a fine nomination, but if Wood had been nominated, democrats would have had to stand up and fight back against the right-wing machine because of Wood's outspoken liberal opinions. They just can't do it. They cannot stand up and say out loud that liberal values are what they really believe is correct for the world.


    As I noted here (5.00 / 1) (#58)
    by brodie on Mon May 10, 2010 at 11:19:34 AM EST
    last year, the Dems haven't nominated a clear capital L Liberal since Thurgood Marshall in 1967, and they're quite out of practice at it.  (Though Clinton did try for Mario Cuomo in 93, credit him for that.)  Moreover, Obama recently has voiced displeasure with some of those liberal era Ct decisions, judging by his negative comments about the activist jurisprudence of the 60s and 70s.

    Kagan is about as liberal as this overly cautious president was likely to muster this time.  Perhaps, in a second term, as he's about to go out the door, he might summon up enough courage, with enough senate Dems on hand, to nominate another TM or Cuomo type of liberal if Ginsberg steps down.  But not the current Warren Ct disparaging Obama.

    Not disappointed with Kagan though.  I would have been had he gone Moderate Merrick Garland on us.

    Parent

    Agreed. (none / 0) (#67)
    by Dr Molly on Mon May 10, 2010 at 12:10:10 PM EST
    I just wonder how we expect to ever convince people that liberal philosophies and policies are the right ones for them if smart people in power are never courageous enough to stand up and explain it, but instead disguise it and pretend that they are not really liberal.

    Parent
    Clinton gave us Justice Ginsburg (none / 0) (#75)
    by Cream City on Mon May 10, 2010 at 12:39:05 PM EST
    but you think that she is not sufficiently liberal?!

    Parent
    I'm talking record and (5.00 / 1) (#80)
    by brodie on Mon May 10, 2010 at 12:50:43 PM EST
    perceptions from our side at the time of the nomination, not what happened over the yrs while on the Ct.

    Iirc, in 1993 Ginsburg was seen as only moderately liberal, center-left if you will, certainly as compared to Cuomo, a solid across the board librul.  RBG turned out okay, about where she'd initially been pegged ideologically, but in 1993 calling her a true liberal, with no qualifiers attached, would have been a stretch.

    Parent

    Ah, more nuanced (none / 0) (#83)
    by Cream City on Mon May 10, 2010 at 12:54:25 PM EST
    than your first statement.  But I would disagree re Ginsburg's record, even then.  It was clear to me what we would see.

    Parent
    Kagan apparently thought RBG was a moderate (none / 0) (#87)
    by andgarden on Mon May 10, 2010 at 01:08:26 PM EST
    at the time. In fact, she apparently helped shape that image for her.

    Parent
    Shaping a public (none / 0) (#89)
    by Emma on Mon May 10, 2010 at 01:24:08 PM EST
    image for then-Judge Ginsburg as a moderate is not the same as believing she is/was a moderate.

    I always thought Ginsburg was a liberal, she was instrumental in early women's rights cases, for example.

    Parent

    But if she is a secret progressive (5.00 / 1) (#55)
    by robotalk on Mon May 10, 2010 at 11:06:46 AM EST
    as you seem to suggest, won't it be precisely her purpose to avoid answering questions?  There are huge incentives to avoid and obfuscate, if not just lie (see J. Roberts re stare decisis).

    What a ridiculous thing the supreme court appointment process has become.

    Take a look at the book review (none / 0) (#1)
    by andgarden on Mon May 10, 2010 at 09:19:13 AM EST
    where she articulates her position on the confirmation process. (PDF) In particular, FN 24, where she appears to disagree with Sunstein.

    I also like this passage:

    I do not mean to say that the promotionof "craft values"--the    building of a Court highly skilled in legal writing and reasoning and also finely attuned to pertinent theoretical issues--is    at all unimportant. Justice Scalia by now has challenged and amused a decade's worth of law professors, which is no small thing if that is your profession; more seriously, the quality and intelligence (even if ultimate wrong-headedness) of much of Justice Scalia's work has instigated a debate that in the long run can only advance legal inquiry. But the bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court's decisions.


    Sure (none / 0) (#3)
    by Big Tent Democrat on Mon May 10, 2010 at 09:29:36 AM EST
    We'll see if she thinks that now.

    Parent
    heh (5.00 / 1) (#4)
    by andgarden on Mon May 10, 2010 at 09:31:18 AM EST
    I'll tell you what, I can really only push for that half-heartedly. I've already made up my mind about her.

    Parent
    I agree (none / 0) (#10)
    by MO Blue on Mon May 10, 2010 at 09:47:30 AM EST
    In the very near future, we will be able to see how much she lives by her words of the past or if she does the same song and dance during questioning that has become the SOP.

    Parent
    Her views will be as clear as Obamas (none / 0) (#2)
    by Yes2Truth on Mon May 10, 2010 at 09:25:40 AM EST

    She'll answer questions and GOP senators will
    interpret her responses as being consistent with
    the general tone of what she implied during her
    "get acquainted" visits in their offices.

    She'll have no trouble giving O another "victory".

    IMO, she need simply be open-minded and not bound (none / 0) (#6)
    by vicndabx on Mon May 10, 2010 at 09:43:48 AM EST
    by any pre-conceived notions, ya know, liberal

    4 : not literal or strict : loose {a liberal translation}
    5 : broad-minded; especially : not bound by authoritarianism, orthodoxy, or traditional forms

    Let us pause and remember the meaning of the word.  Grill her on the process of arriving at the legal decision; where she stood or stands on a particular issue?  Meh.  How is that relevant to what she will do when presented w/a different set of circumstances?

    Well (none / 0) (#61)
    by kaleidescope on Mon May 10, 2010 at 11:46:14 AM EST
    What can confirmation hearings provide in the wake of the Senatate Judiciary Committee hearings on Robert Bork's failed nomination?  Bork was up front about what he believed -- his debates with Spector at the hearings were some of the most riveting television I've watched.  And look what that got him, and look what lessons have been learned in the aftermath.  

    Perjury is to be expected and is never investigated, let alone punished.  Uncle Justice Thomas testified that while he was in law school he never discussed Roe v. Wade.  Both Roberts and Scalito testified under oath that they would hold to established precedent.  Transparent perjury and no one with any power has called either of them on it.

    Has the House Judiciary Committee begun hearings to investigate their perjury?  Heck no.

    When there is no penalty for lying at a hearing, then the hearing itself becomes empty kabuki.  Pretty much an apt metaphor for what has become of large chunks of our government and political life.

    Well, maybe next time it will be Koh (none / 0) (#68)
    by MKS on Mon May 10, 2010 at 12:19:41 PM EST
    Kagan is a centrist from all appearances....She will probably do no harm....Big deal....

    This is amusing: (none / 0) (#70)
    by oculus on Mon May 10, 2010 at 12:27:14 PM EST
    Meanwhile,the nomination fight looks to be fairly hideous, although no one believes at this point that she won't be confirmed. Of course, considering the fact that Obama has 59 Democrats he could have confirmed Glenn Greenwald if he'd wanted to. It looks as if he just wanted to avoid a fight, which may be another trait he shares with his friend Kagan.
     [Emphasis added.]

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    What Are Elena Kagan's Values? | 115 comments (115 topical)

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