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Breaking News
The Left vs. Elena Kagan
Some liberals see red flags in the thin record that Kagan does have.
One almost feels sorry for the left today.
John Paul Stevens was the most reliably liberal member of the Supreme Court. Today, President Obama will announce that he is replacing Stevens with Solicitor General Elena Kagan. As it has become increasingly clear that Kagan would be Obama’s choice (it has been the consensus almost from the moment that Stevens announced his retirement that Kagan was the frontrunner), there has been much gnashing of teeth and rending of garments among liberal legal commentators about Kagan.
Kagan has never been a judge and has written only a few law review articles. We know nothing about her views on most issues that will come before the court. She is, as Paul Campos put it at the New Republic last week, a blank slate. Those who had hoped for a liberal lion are expected instead to accept a pig in a poke.
Some liberals see red flags in the thin record that Kagan does have, particularly on the issue of executive power. This is based on a Harvard Law Review article she wrote in 2001 titled “Presidential Administration,” in which, based on her experience serving in several posts during the Clinton administration, she argued that it is a good thing for presidents to assert control over the regulatory bureaucracy. This is a version of the unitary executive theory, which holds that when the Constitution says “The executive Power shall be vested in a President of the United States of America,” it means that the executive power shall be vested in a President of the United States of America. (Crazy, I know.)
Conservatives (and some but not all libertarians) generally like a unitary executive, not only because it is obviously closer to the orginal understanding of the Constitution’s text than a government run by bureaucrats operating autonomously, but also because it gives presidents the ability to rein in aggressive regulators. Kagan’s article pointed out that this cuts both ways: A liberal administration can also use its power over agencies to push more aggressive regulation. “Where once presidential supervision had tended to favor politically conservative positions, it generally operated during the Clinton Presidency as a mechanism to achieve progressive goals,” she wrote.
Samuel Alito’s support for the unitary executive inspired some ridiculous attacks during his confirmation; his critics could not seem to grasp that the unitary executive theory is about the structure of executive power, not about its scope. It has almost nothing to do with the war powers that President Bush and now President Obama have asserted. Glenn Greenwald writes, in his case against Kagan from the left, that the unitary executive “was distorted by the Bush era”; it would be more accurate to say it was distorted in the Bush era by people like Glenn Greenwald. Attacks on “pro-executive-power views” were nonsensical then and remain nonsensical now. Kagan may be a fan of relatively unchecked executive authority, but her writings don’t tell us that.
If you doubt that the left is upset about having to swallow Kagan without being sure where she stands on all issues, look no further than the willingness of four liberal law professors to play the race card against her with claims that her hiring record as Dean of Harvard Law School shows a lack of commitment to diversity. There is much that is wrong with this line of attack — William A. Jacobson ably picks it apart — but it’s most notable for its desperation.
You can see why liberals would be irked. There was a time when Republicans were the ones who had to deal with stealth nominees with a minimal paper trail to avoid controversy. In 1990 George H.W. Bush nominated David Souter after being assured by John Sununu that he’d be a “home run” from conservatives’ point of view. Souter, of course, turned out to be a fairly reliable liberal. Three years later Bill Clinton could nominate Ruth Bader Ginsburg, a former lawyer for the ACLU, and face almost no opposition.
What changed between then and now is that the right gained a lot of ground in the debate over how the Constitution should be interpreted. In 1987, CBS asked, “When the Supreme Court decides an important constitutional case, should it only consider the legal issues, or should it also consider what the majority of the public thinks about that subject?”; only 32% of respondents endorsed the former view while 60% said the Court should consider public opinion. When CBS asked the same question in 2005, only 42% said the Court should consider public opinion; 49% said judges should stick to what the law says. With Democrats facing a tough election this November, the Obama Administration lacks the political capital to endure a nomination fight now that a plurality of the public opposes a liberal judicial philosophy that once enjoyed the support of a comfortable majority.
Of course, just because Kagan worries the left does not necessarily mean the right should support her. There is little evidence that she will turn out to be a secret conservative, and there is one incident in her background that should give Republicans particular pause. More on that tomorrow.
About the Author
John Tabin is a frequent contributor to The American Spectator online.
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Pingback| 5.10.10 @ 7:03AM
Twitter Trackbacks for The Left vs. Elena Kagan [spectator.org] on Topsy.com links to this page. Here’s an excerpt:
Drudge Ette Obama| 5.10.10 @ 7:05AM
Kagan kicked the military off campus for Don't Ask, Don't Tell which was reversed when federal money was at risk - now that's real character... That position makes me sick, but it kept a lot of mind toads out of the military, which is good.
Someone "ask" Kagan, then make her "tell". She should not have a problem with that. Then give her a couple of our tax dollars.
Finally, it is unfair that unmarried women are suspected of lesbianism - this leads to some bad marriage decisions.
Eric Cartmen| 5.10.10 @ 11:56AM
Well, you're probably right about the unmarried/lesbian nexus - but this doesn't mean there isn't a Benny Hill link. She is his love child - she HAS to be! http://justwilliam1959.files.w.....y-hill.jpg
Nick| 5.10.10 @ 3:29PM
Mr. Cartman,
I think she looks like her namesake from the first "Highlander" film....oh....wait....that was the Kurgan.
Sorry, never mind.
Lullaby's, Legends and Lies| 5.10.10 @ 7:37AM
Since her name was brought up, I have never for even one second, ever thought that Elena Kagan might end up being a "secret Conservative". It would be the funniest thing that ever happened to the Left if she was, but it's not going to happen. The President has naturally built in "Conserv-Dar" on at all times, and I'm sure she's never set off any alarms on him. Just look at the people who he's surrounded himself with his entire life, he doesn't like anybody even remotely close to the center (Communist are okay to him, but Conservatives? Never!!). Actually, my early prediction for her is, she's going to turn out to be even more Left, than Stevens has ever been. The Republicans have got to turn this into a real fight, if for no other reason, than to ruin the rest of the spring for the Left.
Purpleguy| 5.10.10 @ 3:29PM
I certainly hope she is as far left as possible to offset the right-wing block on SCOTUS. I'm not sure she will be though.
UpChuck.Liberals| 5.10.10 @ 8:16PM
THIS is the problem, it's not Left or Right it's not Socialist (losing idea btw) vs. Capitalism (not a swell idea either but better than the current alternative) its about the CONSTITUTION, but then that's a document that you don't give a rats patootie about do you?
Ryan| 5.10.10 @ 7:39AM
This whole situation reminds me of Harriet Myers.
Ryan| 5.10.10 @ 7:54AM
Above is not the usual Ryan who posts here.
Tim| 5.10.10 @ 12:11PM
We got us a whole lot of name jacking on this blog. Ken noticed it first.
Harriet Miers| 5.10.10 @ 8:20AM
So , Who's Harriet Myers ?
Jim O'Brien| 5.10.10 @ 8:24AM
Small wonder that a president with no prior executive experience would pick an academic with no judicial experience to be a Supreme Court justice. My guess is she would be 180 degrees from Scalia, who I rank A+ . She would cite international law and the laws of foreign countries in writing opinions. She would view the Constitution as a work in progress, and not to be viewed through the eyes of Jefferson, Madison, Hamilton, and the rest of our Founders. For example, she would undermine the Second Amendment. She most likely thinks that the Constitution is deeply flawed, just like Obama, who lied when he vowed to defend, protect, and preserve it.
Pingback| 5.10.10 @ 8:35AM
NBC News: Kagan will be Obama’s SCOTUS nominee to replace Stevens (MON AM UPDATE: SO links to this page. Here’s an excerpt:
Baloney Hussein O'Stalin| 5.10.10 @ 8:41AM
This may turn out to be a boon for gay terrorists whose Miranda warnings may be overshadowed by a federally mandated, "Don't ask, don't tell" when it comes to their bomb making activities.
Tim*| 5.10.10 @ 9:15AM
Wow, Ruth " Buzzy " Ginsberg , Sonia " Hot Latina " Sotomayor and now Elena Kagan.
Many can't wait for the video ," SCOTUS GONE WILD " .
Eric Cartman| 5.10.10 @ 9:17AM
I think I just threw up in my mouth.
Tim| 5.10.10 @ 12:12PM
You boys have really elevated this debate.
Eric Cartman| 5.10.10 @ 12:31PM
Thank you. We are scheduled to take our debate topic to HSPDS this week.
Topic: Resolved, Ruth Ginsberg , Sonia Sotomayor and Elena Kagan should not appear in topless in S.C. Judges Gone Wild videos. It will make you throw up in your mouth. We agree.
Tim| 5.10.10 @ 4:06PM
I am scandalized that somebody name of "Eric Cartman" could be so vulgar. ;)
Tim*| 5.10.10 @ 12:41PM
Why Thank You .
We got no time for a goofin'.
Wipe that smile off your faces . stand up straight , tie your boots....... you sorry clowns !
Ken (Old Texican)| 5.10.10 @ 9:20AM
"Please...whatever you do...don't throw me in 'dat briar patch!"
(Brer Rabbit, misdirection to those of you from the north.)
There is not a chance in hell that Obama and crew would nominate ANYONE any of us constitutionalists could support.
I don't care what the woman says, or has said or written.
There must be no question in our minds that this candidate was belched "from the belly of the beast".
Her name came from the same communist, (pardon the shorthand), minds and goals as the rest of the czars around Obama.
Heck, folks, we knew it was coming. I've been talking about it since the spring of 2008.
Pray earnestly for the good health of our present Supremes.
Purpleguy| 5.10.10 @ 4:36PM
Scalia might be next to go... and then the fun will start, don't you think?
Nick| 5.10.10 @ 4:41PM
Hey, PurpleJackass, have you learned what a "homophone" is yet?
Hint: It is not Barney Fwank's cell! Ha-ha!
JP| 5.10.10 @ 9:36AM
Prof Kagan is a former Dean of Harvard Law; she thrived in that Left dominated industry, and was the President's choice for Solicitor General. I seriously doubt that she secretly reads the commentaries of Robert Bork and keeps a copy of the Federalist Papers in her purse.
If I had to place my bets, I would guess that he will vote somewhere between Breyer and Kennedy - or for judicial activism.
Elena| 5.10.10 @ 9:38AM
Yoo Hoo Kenny !
Meet me in the justices ' changing room .
Dan Hirsch| 5.10.10 @ 9:46AM
Methinks the left protesteth too much.
I see a perfect elite in Miss Kagan-the protestation against her is politically-driven chaff to distract Constitutionalists. My gut sees a lot of bad in this appointment. And no meaningful opposition, from either side.
Don't tread on me.
Ken (Old Texican)| 5.10.10 @ 10:35AM
Dan,
Precisely the right words!! "the Left protesteth too much".
I was trying to get at the thought with the brer rabbit analogy.
Thank you.
Tim*| 5.10.10 @ 10:06AM
31 Republicans voted against Obama's appointment of Kagin as Solicitor General .
Judiciary Committee's Orrin Hatch & Jon Kyl can be properly pushed to vote "No " this time.
Purpleguy| 5.10.10 @ 4:38PM
Doesn't matter, 59 Democrats are more than enuf to confirm her.
Tim*| 5.10.10 @ 11:16PM
Doesn't matter, it will be another reason why We ,Tea Party Rebels throw the bums out.
The Tea Party Rebellion Escalates .
Remember In November .
Don| 5.10.10 @ 10:28AM
O should think out of the box.
We've never had a sports hero appointed to the SCOTUS. Sosa jumps out, or Ripkin Jr.
I do think it would have to be a baseball player.
Mark MacInnis| 5.10.10 @ 12:54PM
Does the name Byron 'Whizzer' White ring any bells? Hint: they didn't call him 'Whizzer' because he urinated in the bushes....
Dixie Pixie| 5.10.10 @ 3:48PM
You not thinking that far out of the box.
Try Tiger Woods or Oprah.
Siegfried X| 5.10.10 @ 11:35AM
Republican politicians are terrified of voting against a woman for the Supreme Court. It will never happen.
Purpleguy| 5.10.10 @ 4:43PM
And, Jewish to boot.
chester arthur| 5.10.10 @ 7:56PM
'Jewish to boot'.What a closet jack-boot nazi thing to say!Always booting jewish people.Just don't go all atwitter because someone mentioned a closet.
Tim*| 5.10.10 @ 11:20PM
Ding , Ding , Ding !
Purpledude plays The anti-Semite Card.
You Lib Apologists are scrapin' the bottom of the barrel to slander Republicans.
Pingback| 5.10.10 @ 11:42AM
Health Care BS - KAGAN NOMINATION IS GOOD NEWS FOR THE CONSTITUTIONAL CHALLENGE TO OB links to this page. Here’s an excerpt:
Louis Jenkins| 5.10.10 @ 11:45AM
Siegfreid X:
I'm afraid you're right. There's an opportunity here, but the Repubs will not take advantage. They can, but will they? There's too much unknown about this nomination. Fortunately, there will be some time to check out the woman's portfolio. (What's more, there will be yet another retirement coming. Four women?)
marek| 5.10.10 @ 12:03PM
Just asking- did Obama ever pass a bar exam??? You can teach law (like he did part time and like Bill Ayers terrorist wife does at Northwestern) and work for a law firm without being admitted to the bar. You just can't represent a client in court
Oldefarte| 5.10.10 @ 12:36PM
She will be a political bone to THE GAY COMMUNITY, and if/when THE DEFENSE OF MARRIAGE ACT or DON'T ASK, DON'T TELL MILITARY POLICY come before the SC, she will be a vote for the PROGRESSIVEISM of these issues!!!!!!!!!!!!!!!!
Purpleguy| 5.10.10 @ 4:44PM
Yeah! That would be great ... stop oppression of others that aren't like you ...
chester arthur| 5.10.10 @ 7:58PM
Thank goodness there's no one else like the purp.
Oldefarte| 5.12.10 @ 1:23PM
Purple, you're not OPPRESSED, just OBNOXIOUS!!!!!
mames| 5.10.10 @ 12:43PM
Another Marxist, anti constitutional lawyer who will mouth the words to defend against foreign and domestic enemies, all the while being one of those very domestic enemies. She will be a defender of precedent rather than constitutionality. This will all lead to violence if not corrected very soon. Not good news but what can we expect from another traitor to the constitution. She is likely a lesbian as well but we will not hear of that until she is seated.
Gr0w1er| 5.10.10 @ 1:26PM
Smokescreen!! Smokescreen!!
Anthony| 5.10.10 @ 1:55PM
Ideologues like Obama leave nothing to chance, unlike hapless Republicans, such as Gerald Ford And George Bush Sr. They never understood what the left has always known about 9 justices of the Supreme Court; POWER, CONTROl, AND UNACCOUNTABILITY.
Obama has picked a radical leftist out of the safety of one of the elitist institutional safe harbours, academia.
Not a chance in hell that she is a closet conservative. Bet the farm on it folks.
GW| 5.10.10 @ 2:15PM
This is just a horrible move politically for Obama. There has to be hundreds of liberal judges currently on the federal bench somewhere who would pass confirmation considering the Dems have a 59-41 majority. But, like Bush before him, Obama picks a friend and now some on the left are jaded.
I'm going to laugh as we watch the media/Obama defend this man-looking woman (I'm guessing Rachel Maddow likes the pick in more way than one), whereas others (such as Campos) philosophically are concerned.
Just shows you Obama's political cluelessness is making Bush look smart.
Dixie Pixie| 5.10.10 @ 3:42PM
Elena Kagan .... Great, Just Freaking Great, A SCOTUS pick who is gender confused and a Far Left Legal Wing-nut.
If the Republican Party can not blow this SCOTUS pick out of the water then the Republican Party is all but useless.
Nick| 5.10.10 @ 3:51PM
The KAGAN will be just as liberal as Ginsburg, Souter, and Stevens, if not more so.
You can bet on it.
Nick| 5.10.10 @ 4:39PM
Orin Hatch just said on Cavuto that, "One can be liberal and still be a good justice."
Ahhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!!
Purpleguy| 5.10.10 @ 4:45PM
Absolutely true ...
Nick| 5.10.10 @ 4:52PM
Hey, PurpleJackass, have you learned what a "homophone" is yet?
Hint: It is not Barney Fwank's cell! Ha-ha!
I'm sorry that your TSA co-workers taunted you so badly that you had to retaliate, and were subsequently arrested.
In the future, stay away from those scanners!
PJ| 5.10.10 @ 5:09PM
Not too sure about Kagan. Kinda reminds me of Harriet Miers until I found this scathing article written by a law professor: http://www.thedailybeast.com/b.....ers/full/. WOW!
Yet she might get in because of the Democrat majority in the Senate or not, depending how worried a 1/3 of the Senate is regarding re-election in November.
Pingback| 5.10.10 @ 11:17PM
Elena Kagan Personal Life,Gail Lumet Buckley | Student Loan … | Consolidation Finance links to this page. Here’s an excerpt:
Richard| 5.11.10 @ 8:08AM
If she is confirmed, will they call them the "Supremes" and they can vote 'duh, duh, duh?" There is no experience on this one's resume and this is not a job for OJT. Surely there is a more qualified person out there, or is Obama running out of friends? She'll be just a temp for when Zero is arrested, it all will roll back. Sweet!
Bruce | 5.11.10 @ 1:11PM
STOP THE DAMNED PINGBACKS! PLEASE!
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