Obama Nominates Elena Kagan

President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing on some issues –potentially moving the Court to the right. I discussed on the nomination on this segment of Countdown.

For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.

Stevens himself would occasionally vote with the conservative justices. Thus, it is possible that in those areas, like flag burning, Kagan could shift the vote back to the left. However, in two of the few areas where she has given her views (terrorism and free speech), Kagan states more conservative views.

In one interesting exchange, Kagan not only states that she believes we are “at war” but agrees that we should have considered ourselves at war since the 1990s:

GRAHAM: OK. Well, that would make him your boss, yes. But it seems to be — I think he’ll be a good boss. And I think you’d be very qualified for you job. [. . .] I asked him, “Do you think we’re at war”? And he said, “I don’t think there’s any question but that we’re at war.” I think, to be honest, I think our nation didn’t realize that we’re at war when, in fact, we were.

When I look back at the ’90s and the Tanzania, the embassy bombings, the bombing of the Cole, I think we, as a nation, should have realized that, at that point, we were at war. We should not have waited until September 11, 2001 to make that determination. Do you agree with that?

KAGAN: It’s easy to agree with my boss in that circumstance.

Graham also asks her the same question posed to Holder on whether people accused of financing terrorism (even when not captured on a traditional battlefield) should be stripped of their rights as enemy combatants. She answers in the affirmative:

GRAHAM: Well, I certainly do too. And I told him I thought what he was speaking of was the morale high ground. There’s a physical high ground in — in traditional war. But in this war, there’s the moral high ground and we have to maintain that moral high ground. I think at times we’ve lost it. We also have to remember they’re at — we’re at war.

Now, I asked him this question, “Now, when you talk about the physical battlefield, if our intelligence agency should capture someone in the Philippines that is suspected of financing al Qaida worldwide, would you consider that person part of the battlefield, even though we’re in the Philippines, if they were involved in al Qaida activity”? Holder said, the attorney general said, yes, I would. Do you agree with that?

KAGAN: I — I do.

Kagan’s writings (as little as there is) is highly problematic for liberals. Her writings on hate speech indicate a willingness to compromise on free speech issues. This is a similar view as expressed and criticized with Justice Sotomayor. Kagan’s 1996 article “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine” in the University of Chicago Law Review should make any free speech advocate feel uncomfortable. In the article, Kagan suggests a broader basis for possible government regulation of speech and suggests that it should be the motives of the government (as opposed to the right to free speech) that should control the inquiry.

I argue, notwithstanding the Court’s protestations in O’Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best under- stood and most readily explained as a kind of motive-hunting.

On one level, the article is descriptive of the existing case law while offering a different way to viewing disparate rulings. However, she appears to support a broader scope for the regulation of hate speech and pornography.

In Regulation of Hate Speech and Pornography After R.A.V. in The University of Chicago (1993), Kagan explores different ways to regulate both pornography and hate speech. Kagan latches on to an approach that has long been controversial with free speech advocate — obscenity as a basis for limiting speech in areas like pornography:

The key point here is that regulation of obscenity may accomplish some, although not all, of the goals of the anti-pornography movement; and partly because of the long-established nature of the category, such regulation may give rise to fewer concerns of compromising First Amendment principles. Even for those who think that the obscenity doctrine is in some sense a second-best alternative, it represents the first-best hope of achieving certain objectives.

While Kagan refers to such suggestions as “trial balloons” it suggests a more fluid notion of first amendment protections:

The presumption against viewpoint discrimination, relied upon in Hudnut and further strengthened in R.A.V., has come to serve as the very keystone of First Amendment jurisprudence. This presumption, in my view, has real worth, in protecting against improperly motivated governmental action and against distorting effects on public discourse. And even if I assign it too great a value, the principle still will have to be taken into account by those who favor any regulation either of hate speech or of pornography. I have suggested in this Essay that the regulatory efforts that will achieve the most, given settled law, will be the efforts that may appear, at first glance, to promise the least. They will be directed at conduct, rather than speech. They will be efforts using viewpoint-neutral classifications. They will be efforts taking advantage of the long-established unprotected category of obscenity. Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.

It will be interesting to see how this nuanced view of the first amendment plays out in the Snyder vs Phelps case involving the Westboro church, here.

Under the so-called Ginsburg rule, it is unlikely that we are going to get much substantive discussion of such views. Ironically, Kagan helped create that rule as a staff on Ginsburg’s nomination. She once called confirmation hearings “vapid and hollow” — a tradition that she may now embrace. As in earlier hearings, the Democrats are unlikely to call any witnesses on these liberal concerns and the Republicans are likely to support those more conservative views. The result is likely to be entirely vapid as Kagan suggested. Unlike Republicans who oppose GOP nominees if they are insufficiently conservative, Democratic senators have shown that they do not fight for such ideological strength in a nominee.

Even in the early commentary, it is distressing how the discussion immediately focused on the politics rather than the substance of the nomination. As with Sotomayor, the media appears unable to have a discussion about the substantive views of a nominee.

There is no question that Kagan has proven leadership ability, particularly as a consensus builder. She was able to lead Harvard Law School and end the liberal/conservative fighting on that faculty. However, she is not considered an intellectual leader in the teaching academy. She has actually written comparatively little as an academic. She has written only a few significant law review articles and a collection of shorter pieces. She appears to have received tenure at the University of Chicago based on a single article — something that would not be permitted at most top schools. What writing is there is not welcome by civil libertarians, which shows a lack of commitment to the very “fundamental rights” that President Obama referenced this morning in his nominating speech. When it comes to free speech and detainee rights, she (like the President) adopts a more legally relativistic approach.

While conservatives are likely to attack her on her banning military recruiters from campus, she has largely avoided controversial writings or positions in her career.

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.

122 thoughts on “Obama Nominates Elena Kagan

  1. I was for the Texan, Diane Wood. In the end the same old same old prevailed. I would assume he will get a few republican votes to get this nomination through thus avoiding another fight.

  2. The reason Kagan has no court experience is because republicans blocked her in 1999 when Clinton appointed her.

  3. Nal:

    why? Kagan has good progressive credentials and will definitely be a progressive voice on the court.

  4. bdaman I really don’t think think Palin will be able to “woo” Jewish voters to her camp as your article says.

  5. Nal:

    she isnt going to move the court to the right, I wouldn’t worry. She will be good on every other progressive policy. Obama has his reasons. He isn’t a fool after all.

  6. Byron:

    Your definition of progressive and mine are different. Anyone who endorses the Bush/Cheney template of presidential power is not what I consider progressive.

  7. Nal:

    from what I hear she is a proponent of a strong executive, but other than that she is fairly liberal. I seriously doubt she is on board with Bush and Cheney.

    Are you upset about the possibility of relaxing the Miranda warning?

  8. Obama has been Bush Lite since day one.

    Screw ’em all.

    At this point, if not for the innocents and proximity of our host to the situs? The best thing that could happen to this country would be for an asteroid to slam into D.C. while Congress and SCOTUS are in session and both the Prez and Veep are in town.

    We need a clean slate from these graft poisoned fascist jackoffs in Washington.

  9. Swarthmore mom It’s not my anything.

    It’s not my article, I just linked to it. Bdaman does not endorse, word for word, any of the articles that he links to in the comment section of this or any other blog. His exact views, beliefs and or personal opinions are known only to him.

    Think of it as feeding the sharks. I toss it out there as bait and then let the intellectuals chew on it.:) It’s the whole mashing of the teeth. Plus it’s entertaining even if it’s only entertaining to myself.

    P.S. Happy Mothers Day wit Luv:) Bdaman

  10. This administration’s “consensus-building” begins with dismissing the liberal position, then seeks compromise with conservative opposition.

    It is not difficult to understand why this is the case. Just watch how progressive’s will react to Kagan’s nomination and compare that to conservative’s response Bush’s nomination of Miers.

    The progressive movement in this country is moribund. After the next election, teabaggers will be treated with more respect than progressives.

  11. Am I the only one who thinks Obama is willing to give more concessions to the right, than to the left?

    I’m all for compromising, and meeting others halfway, but it appears to me that he is more concerned with placating the right by giving in to their demands, than he is willing to placate the left by ignoring some of what he campaigned and was elected on.

    Needless to say, I’m disappointed. Very disappointed.

  12. http://www.mediaite.com/online/elena-kagans-personal-life-to-enter-spotlight/

    ‘USA Today reported that Kagan once took a 10k honorarium in 2008 for serving on an advisory panel with the financial giant.’

    above bothers me a lot right now…..

    “I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”

    and that statement, in this current climate of over-reaching underperforming government and radicalized police and courts…really is frightening. [think of all the death row peeps who have been acquitted due2 DNA evidence long lost or buried…]

  13. Needless to say, I’m disappointed. Very disappointed.

    Just how dis-appointed is you? Cuz what you could do, if you really , really, dis-apponited, you could start ya own campaign and dens if you ones, dens you wouldn’t be dis-apponited yull be ah-pointed.

    I don’t know what Ah is but I’m pretty sure it’s whole lots better dan dis:)

  14. If you are a progressive or a liberal don’t expect anything from Obama and the Democrats better than a kick in the teeth. Your only option is to punish the Democrats by not voting for them at your next election.

    As far as the Democrats are concerned liberals and progressives have no place to go if they don’t want a Republican government. Prove the Democrats wrong by voting for a minor party or independent candidate if one exists and otherwise not voting. It is time for the Democatic and Republican parties to merge and those who are not right wing loons to find other candidates to vote for.

  15. CM I will stay with the democrats as bad as they are. Palin and her republican teabaggers seem to be the alternative and that is way too scary.

  16. Professor,

    Thanks for your comments on MSNBC.

    I’m sorry lap-dog Todd dismissed your comment about the War on Terror and civil liberties so quickly. I noticed that lap-dog Gregory decided to challenge you by insisting that Kagan was in synch with Obama on issues of due process. Duh. I think that’s what you were saying.

    The distance between Washington and the rest of the United States is growing deeper and wider by the day.

  17. @ George, u nailed it.

    Gregory was making the case for BHO to pick a more liberal justice, but he didn’t know it.

  18. Buddah.

    You get 10 points for “these graft poisoned fascist jackoffs”.

    There needs to be an internet site where one can go to find really poisonous putdowns for use in blog posts.

  19. Swathmore Mom.

    The whole US political process is skewed to the far right. Both parties are well to the right of the majority of American voters.
    The fact is that both parties are under the control of the corporate oligarchy. There is no party to represent those of you who are not among the 1% plutocratic elite. Gore Vidal long ago describe America as being governed by a party of the plutocracy which had two right wings called Republicans and Democrats. He was right then and he is correct today.

    If you continue to vote for the democrats they will continue take your vote and thank you by implementing Republican policies. You have to either recapture the Democratic Party for ordinary voters by grass roots action and punish it by witholding your vote or start a new party that will take time to become electable. But if you

  20. Chuckie and Dickie,think they are the grownups, when all they are is courtiers elbowing each other for the favors of the corporate plutocracy. The enemy is the corporate state and its’ representatives in both parties. One does not even have to ascribed evil to these people, though their actions certainly lead to it, it’s merely their inability to see beyond the cave wall or think outside the box, in current parlance.

  21. If both parties are to the right of the American people, why do so many people consider Obama to be a socialist? I think this country took a turn to the right when Reagan was elected. If you look at polling of those that grew up under Reagan, they are very conservative. It is the very young and some older people who are more liberal.

  22. Mike S said…”One does not even have to ascribed evil to these people, though their actions certainly lead to it, it’s merely their inability to see beyond the cave wall or think outside the box, in current parlance.”

    I completely agree, Mike. From their perspective, we need to managed like hogs on the farm. To them, that kind of corporate apologist behavior makes sense. I can’t hate them for their blinders, but I can continue to point out the facts until the promised benefits of their corporate loyalty no longer offer what they want. Until then, they will defend their master(s).

  23. Check the proportion of The American people who actually want corporate bailouts and wars of occupation.

    Yes there are many people who think Obama is a socialist. These people are so far to the right that they have fallen off the edge of the flat earth in which they no doubt believe. In the US the Overton window which limits the range of political dialog considered legitimate has been moved to the extreme right. Much of this must be blamed on the main stream media and the Washington Pundits who themselves have opinions far to the right of what most Americans think.

    I suggest you consult Glen Greenwald’s archives as he has been hammering away at this point for years.

    I would say that there are several reasons that American politics is so right wing:-

    1/ Negro slavery has left white working class people with such a fear of a slave revolt that they are distracted by an ideology of preventing Niggers getting anything to which they are not entitled from effectively using the political process to advance their own rights. Anti-Negro racism is a more powerful motivator than self interest;

    2/ Most politicians are bought and paid for agents of the corporate oligarchy if they are not actual members of it;

    3/ The main stream media are owned by corporate members of the oligarchy and naturally support their interests;

    4/ Their is a culture of journalists wanting to suck up to the powerful rather than expose the truth;

    5/ Progressives and liberals are deluded into thinking that the Democratic party is sufficiently friendly to their interests to be a better choice than the Republicans.

    If you want good journalism, go to Greg Palast’s web site or the web sites of the British papers.

  24. I agree with Mike as well to a point. There are indeed actors within the system that merit the status of evil. They would be ones like the ringleaders like Cheney and every signatory of the PNAC charter. But most of them in DC are about as cognizant of their behavior as a hydra (the nine celled organism, not the monster). They don’t understand anything but graft because they’ve been swimming in it for far too long.

  25. Mike Spindell

    Chuckie and Dickie,think they are the grownups, when all they are is courtiers elbowing each other for the favors of the corporate plutocracy. The enemy is the corporate state and its’ representatives in both parties. One does not even have to ascribed evil to these people, though their actions certainly lead to it, it’s merely their inability to see beyond the cave wall or think outside the box, in current parlance.


    Well said and well worth a couple rereads.

  26. The nomination of Elena Kagan is the last nail in the progressive coffin. I had hoped, foolishly, that despite the President’s unwillingness to lead the way in restoring the rule of law, he would at least appoint Supreme Court justices who could gradually shift the course of the present court. Now Democrats are left with an executive branch that embraces the unitary executive theory (regardless of what it says), a legislative branch with the courage of a dormouse and a judicial branch continuing to eliminate personal freedoms while elevating the power and status of corporations. From my viewpoint, this presidency is a bitterly disappointing failure.

  27. “Progressives and liberals are deluded into thinking that the Democratic party is sufficiently friendly to their interests to be a better choice than the Republicans.” I do think the democrats are a better choice than the republicans. Al Gore was better than Bush. Obama-Biden was a better choice than McCain Palin. The democrats are far from ideal but usually a better choice than the republican. I think Bill White is a better choice for the governor of Texas than Rick Perry. Bill White is for keeping Thomas Jefferson in the history books. Most democrats are pro choice. Most republicans are anti choice. The republican candidates are getting more and more right wing while the democrats are moving more to the center.

  28. bernie@uab.edu 1, May 10, 2010 at 11:21 am

    Kill this grose fat cunt b4 she wakes up tomorrow.

    Bernie I think you made a boo boo. UAB is dat da University from the great state of Alabama. What do EDU stand for? is you in da edumacation d part ment? Can you tell us wetter r knots you fella edumacators feel da sames way u do.

    Bernie yo e-mail address belongs in da middle box.

  29. I am disappointed with the lack of justices with strong views on personal freedom.


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  30. Cm Look at the Florida Senate race. Rubio is the far right republican. Charlie Christ is the centrist republican running as an independent. Meek ,the democrat, who is the more progressive of the three is running a distant third.

  31. Swarthmore Mom.

    Some people think that it is best to choose the lesser of two evils but what happens when even the lesser evil is too evil. That is the situation in the US now.

    I am commenting from Australia. We have our right wingers here but they pale imitations of your right wingers. Our worst right wingers are to the left of your Democrats.

    If you are thinking short term then choose the Democrats, but if you want to change things in the long term you need another electable party other than the Democratic and Republican parties or non-elite Americans have to recapture the Democratic party. The other necessity is to confront the racism of the white working class. It is the main reason poor whites are against polices that help poor people, they see them as helping blacks.


    I do not believe the political situation in Australia is as dire as it is in the US. The UK also has moved disastrously to the right, but not as far as the US.

  32. vlf2112

    Am I the only one who thinks Obama is willing to give more concessions to the right, than to the left?

    I’m all for compromising, and meeting others halfway, but it appears to me that he is more concerned with placating the right by giving in to their demands, than he is willing to placate the left by ignoring some of what he campaigned and was elected on.

    Needless to say, I’m disappointed. Very disappointed.


    I agree. You’ve given words to what I think too.

  33. Swathmore Mom.

    Your Republicans and teabaggers, Cheneys, Palins and McCains are unhinged scarey.

    I am glad I am not in the US, I think the US is going to have a period of fascist dictatorship. I think that this is inevitable regardless of how many people vote for Democrats. Things are out of balance too far to prevent this. It is as a toss up whether it is Democratic or Republican banners wave over the advancing fascists.

    The major determinant in the next election will probably be liberal Democratic voters who feel disappointed with Obama staying home from demoralization and disillusionment and allowing a Republican win by default. Whoever wins I think dysfunctional policies by whoever is in government are going to finish America’s pretenses to being a super power, that will result in an economic crash from which bailouts for the rich will not be able to rescue it. America now is Germany 1927.

  34. America is not now Germany in 1927. It could get that way if Palin takes over. What country do you live in CM? You must post all night. lol

  35. Glen Greenwalds’s latest column is a great read. His put downs of Kagan are superb. How is this for a sample:-

    “It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”

    I suggest you read it in full.

  36. I was considering the odds that Ms. Kagan would not be confirmed. Again, Greenwald has the likely scenario in the quote below. What *is* wrong with the so-called Progressive Democrats? Even with a majority they just cannot “get ‘er done”.

    This Republican suggests that your ilk raise cane and send Obama a defeat with this nomination that will send him a strong message that *might* help him see the error of his ways and get him back on the track of *Change* for which many of us voted.

    I had a fleeting thought; what if Ms. Kagan was honorable enough to see the sincere opposition to her and withdraw—silly me.


    “One final thought about Kagan for now. As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That’s just how things work. They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick. In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court.”

    End Quote

    Again @


  37. CM,

    I guess we are GW fans. We both have linked to the same Greenwald article 4 times thus far…

  38. I question whether Democratic elected representatives and candidates care whether pushing right wing policies result in progressives and liberals staying home and result in a Republican win. After all the worst thing that can happen from their point of view is a Republican government which will push economic policies even more friendly to kleparch class to which they belong than their own and these representatives and their women will not be effected by regressive republican policies on social issues, they can fly overseas to get an abortion.

  39. We may not be Germany in ’27, but it’s only a few short minutes away from December 31, 1926.

  40. Former Fed.

    I am a blog addict. I have been impressed by the quality of US political blogs which is so much better than that of US politics.

    My favorite blogs are those of the Agitator Radley Balko, Glen Greenwald and of course this one. I also like Craig Murray and Andy Worthington from the UK.

    ‘What *is* wrong with the so-called Progressive Democrats? Even with a majority they just cannot “get ‘er done”’.

    What is wrong with progressive Democrats is that they are not progressives. Where there’s a will theirs a way, corollary where there’s a won’t theres no way. They don’t implement progressive policies because they don’t want to implement such policies. They never will no matter how big a majority they have, they will always find an excuse to back down or comprimise. The Democrats are Light Republicans,

  41. Obama chose the candidate that the republicans were least likely to filibuster. I think it is as simple as that.

  42. The democrats are not monolithic. There are a few progressives, many moderates and what they call blue dog democrats. Progressive democrats are not in control of the US Senate so how could they possibly get anything done.

  43. Swarthmore Mom.

    I live in Sydney Australia, timezone GMT +10/11 and post on blogs during the day and sometimes until late at night. it is 02:15 AM now and I really should stop.

    I don’t think it is just Republicans who bear the threat of fascism. The Obama administration has moved so far to the right, has adopted so many Bush ideas that Obama opposed during the election campaign, the Attorney General wanting to strip Miranda warnings from terrorist suspects, indefinite detention of terrorism suspects and so on.

    Progressive democrats may not control the Senate but they could have put up more of a fight on healthcare than they did. I often browse Hullabaloo and FiredogLake and they both chock full of cries of progressive/liberal rage at the wimpishness of the Democrats. I do not believe that it is just wimpishness. When people keep repeating the same dysfunctional behaviour and fail to learn from their mistakes one has to suspect that it is more than just mistake, their is a component of their wills that keeps them stuck in the cycle.

  44. Good luck on the progressive party. I am getting older and it has not happened yet. The US is more right wing than it has been in my lifetime.

  45. As I understand it the US like the UK has first past the post elections for legislators which is very unfair for minor parties and effectively makes establishment of new parties very difficult.

    In Australia we have voting system that are much kinder to minor parties. We have preferential or optional preferential voting for the lower house in both states and federally except for Tasmania which has multi-member electorates for the lower house. For the Federal Senate there is a different flavour of preferential voting.

    The Senate system in particularly good for minor parties. The Australian senate works very well when neither major party has control and their representations are near balance and the remaining seats go to minor parties and independents. At the moment that is not the case, the conservative parties have an effective veto on all legislation as the government needs the votes of every single minor party and independent to get anything through. Action on Global warming has already been blocked in the senate and the Rudd labour government has lost the will to fight over it.

    Really the US needs to adopt preferential voting to break the stranglehold of the two keleptarchic parties. of course it will never happen because it is against the interests of those who control both parties.

  46. As an undergraduate at Princeton, Kagan wrote a senior thesis titled “To the Final Conflict: Socialism in New York City, 1900-1933.” In the “Acknowledgments” section of her work, she specifically thanked her brother Marc, “whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” In the body of the thesis, Kagan wrote:

    “In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?…

    “Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”


  47. Its taking progressives and liberals several doses of reality to recognize that Obama never made any promises to move things in their direction. In fact he was quite careful to trail off and let our imaginations project onto to him any hopes people may have had that he would change anything other than the color of the presidents skin. Those few promises he did make, withdrawal and Guantanamo, were quickly dashed so we could move on in a more ‘realistic’ manner. His strategy is more brazen than even Clinton’s whereby he assumes right wing positions on things before the right have had a chance to consider it, before the debate has even begun. Off shore drilling is one example, a seemingly unnecessary concession to the right that has thankfully blown up in his hand as a result of the inevitable off Louisiana. Its more than triangulation, its just taking the republicans manifesto and becoming it. Kagan is an outrage though, she endorsed unlimited detention for terrorist funders. I thought funding terrorism was against the law, but clearly the law has nothing to do with it. Jesus, these lawyers worse than the oil gangs.

  48. After the Miers debacle, Republicans insisted upon and received a proven conservative who had a documented track record that required no scouring articles while reading-between-the-lines for hidden reassurances. Why wouldn’t Obama return the favor? Besides getting a liberal on the court, he also gains the opportunity to vigorously defend liberal values which few (other than our friend Prof. Turley) seem willing to do. Democrats are forever floundering like Maxwell Smart marching through the Control Headquarters progressing just as each door slams shut. Republicans kick the doors open while Democrats too often get their noses pinched.

  49. JohnW, what liberal ‘values’ is he promoting? Granted, Michelle is growing a vegetable garden in the WH but beyond that…expanding the war, unlimited unlimited detention, expanding presidential powers, everything for the banks nothing for anyone else, ballooning military budgets, more nuclear power, more coal…drilling…whats left?

  50. KAGAN’S 2005 LETTER

    “To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. ”

    “When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

  51. On a lighter note, I am amused that with all this incessant talk that Elana Kagan is the intellectual counterweight to Scalia and Roberts, I wonder how Sam Alito feels being lumped with Clarence Thomas as the resident court lightweights.

  52. Sitting out elections? Complaining about Obama? Didn’t anyone see the signs before he was elected? Why do people play the game of going back and forth between the GOP and the Dems? I believe the definition of insanity is doing the same thing thing over and over and expecting different results. There was a viable alternative before: Nader. A true citizen’s friend and not a corporate whore. Yeah, all the usual arguments are bunk. He’s selfish for running (what gives the GOP and Dems the exclusive right?). He caused the Dems to lose (they lost it themselves; of course it’s easier to blame someone else). To effect real change one has to take a leap of faith, and have the courage to do the different. This country sorely needs something different. Otherwise, any change we get will be surface because the status quo keeps the status quo.

  53. To the folks yearning for a more progressive (though I have no idea what that word means anymore) third party, there already is one and it is called the Green Party. Start on the local level and work your way up. Maybe in a decade the Greens can have national candidates for Congress. Focusing on changing from within is a non-starter.

    For those that are distressed on the rightward movement of the States, do what I did, get the hell out. I can be a socialist in France and not get strange looks or run out of town.

  54. Regarding the term *progressive* attached to most Democrats, the following is from a watchdog group (POG0) and a woman who should understand the political meaning of the term. As a longtime registered Republican, I crossed the Party line to vote virtually exclusively for Democrats because each one portrayed themselves as “progressives,” including Mr. Obama who said this, “I believe in a whole lot of things that make me progressive.”

    Now to the linked quote by “Danielle Brian [who] is celebrating her 20th year at the Project on Government Oversight this week.”


    “I’ve been doing this for 20 years, and it’s never been worse,” she says. “I know that’s actually shocking for progressives to hear because their people are in power and they thought that was going to make all the difference.”

    Congressional Oversight Crippled By Institutional Anemia, Reformer Says


  55. The quote by Mr. Obama in my previous was from ‘The Progressive’


    By the way, under the About Us section of ‘The Progressive’ this following is what being progressive means to me.

    “…steadfastly stands against militarism, the concentration of power in corporate hands, and the disenfranchisement of the citizenry. It champions peace, social and economic justice, civil rights, civil liberties, human rights, a preserved environment, and a reinvigorated democracy. Its bedrock values are nonviolence and freedom of speech.”

  56. FFLEO,

    Thanks for the definition of ‘progressive’. That’s a label I’m proud to wear.

    I don’t really have anything to add about the nomination of Elena Kagan – mostly my opinion on the matter is derived from what I read here, so I would only be parroting your displeasure, but I do have a question for the lawyers (and anyone else who’s payed attention) here: How has Justice Sotomayor’s record been so far? It’s certainly been the case that Justices were not exactly what they were thought to be when they were nominated – is she better, worse or about the same as people thought or isn’t there enough data to tell? I would appreciate it if anyone could provide some insight into this for me.

  57. Buddha,

    As with you and the other regulars here, this appointment to the Supreme Court is vitally important. One of the principal reasons I voted for Obama was because I did not want an ultra-religious Republican nonintellectual influencing nominations ((a VP Palin) or one who lacks rational judgment (McCain) selecting the next 2 or more justices.

  58. Dr. K. Ph.D. (Slarti),

    I recommend ‘The SCOTUSBLOG’. Perform a Search in SCOTUSwiki where you can read in infinite detail about the cases and of Justice Sotomayor’s stance on current/pending S. Ct. cases. Here is the wiki link with all of the relevant cases.


    From a nonlawyer’s perspective, I think that Justice Sotomayor’s placement on the Supreme Court was fair, completely justified, and that she is doing an adequate job.

  59. If you like Larry Summers, you’ll love Elena Kagan..!

    For me Kagan’s endorsement for the criminal Bush Administration of the Co-Founder of the vile corrupt duplicitous Federalist Society cabal, should disqualify her for Night Traffic Court in the Bronx New York..!

  60. […] Jonathan Turley writes: President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right. […]

  61. From the NYTimes:

    In a 2001 article in The Harvard Law Review that considered the “unitary executive” theory, Ms. Kagan wrote that such presidential control “expanded dramatically during the Clinton presidency,” a development she largely welcomed. But she said Congress, experts and interest groups should also play a role in informing the executive branch’s actions. “I do not espouse the unitarian position,” Ms. Kagan wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”

    The article that seems to raise the hackles (where are those, BTW)?) particularly of progressives, was written in 2001–BEFORE 9/11, BEFORE GWBush put the unitary executive theory on a daily steroid-laced diet of fear. In her article, Elena Kagan expressed concern about the level of executive power under Bill Clinton. I don’t see a ringing endorsement for conservativism from her. I’m not so concerned.

  62. rc,

    “Hackles” refers to the hair on the back of your neck. To get them up is like what a dog does when angry: they stand.

  63. What an unfortunate waste of a seat. Does she not have strong ties to Larry Summers?

    What a mess this is turning out to be.

  64. I have to agree with rcampbell. I am not too concerned about Kagan’s nomination. I would have preferred a more openly progressive choice, like Prof. Turley, but Kagan will continue the work done by Justice Stevens.

  65. My view is as Prof. Turley suggests in his last paragraph. Obama has picked Kagan, not out of a strategic calculus that liberals are stuck with supporting him and conservatives can be moved to vote for Kagan, but because Kagan and Obama have two things in common.

    First, they are much alike politically, both in viewpoint and in practice. In viewpoint, they are a good deal more conservative on key issues of our time, especially the rights of the accused.

    Second, in practice, they are both opportunists. Reportedly, Kagan’s high school yearbook photo has her in a judge’s robes and voicing a determination to make it to the Supreme Court. The evidence suggests she has bent 30 years of effort to that end, much as Obama has bent decades of effort to achieving higher political office.

    The US abounds with opportunists. They are our undoing.

  66. Excellent Hugh Sansom; you’ve got the right perspective opportunism is the hallmark of all to many prosecutors and those such as Kagan in and out of political legal positions…The same was true of Chertoff, Yoo, Alito, Holder is a terrible opportunist Yoo, Bradbery, Bybee…Opportunists…their completely disingenuous when they speak of the law and their love of the law rule of law it’s all bull from the moment they open their mouths…Obama maybe the ultimate opportunist…it’s as if they’re bread to it…for it live by it…without shame or equivocation…

  67. Swathmore Mom.

    The idea that I am trying to get across is that the extreme right-wing nature of the Republicans is giving the Democrats cover to move much further to the right than they would otherwise be able to do.

    People look at the Republicans, recoil in horror then vote Democrat not realizing how damaging to their interests are the right wing politics of the Democrats.

  68. I agree the democrats are moving further to the right with few exceptions. We disagree somewhat on the motive. I think the constant threat of filibuster is pushing them to the right.

  69. Prof. Turley-Thanks for the great analysis. For what it’s worth, I agree with you. We have 4 conservative pit bulls (Alito, Scalia, Thomas and Roberts)and I believe we need not only someone who will preserve Stevens’ legacy but be a smart pit bull for the left. Sotomayor is definitely not up to snuff in this category. As Former Federal LEO said, she is “adequate.” Well, adequate isn’t enough when up against the Ferocious 4. The 4 conservatives who are against “judical activism” have already reversed a 100 year precedent. What’s next.

    And, Ginsberg is probably on the way out, during Obama’s presidency. I thought Sotomajor was a political choice and not particularly qualified. She did have a paper trail. Now it seems with Kagan we have a stealth candidate who isn’t progressive enough. I am once again underwhelmed. Obama seems to be more interested in getting someone who is confirmable rather than a person who will rebalance the scales and offset the right wingers on the court.

    The Republicans are already locked and loaded with the lack of judicial/litigation charge. Even more scary, some conservatives are pushing for her, realizing “it could have been worse.” Well, I say that they’re going to jump all over anyone Obama nominates, so why not have a real fight and nominate someone with unquestioned liberal credentials? I think the Kagan nomination will go through. People should get ready for Ruth’s departure and start pushing Obama NOW for a better nominee than either Kagan or Sotomayor.

  70. Thanks for participating, Mr. Moulton. Your thoughtful posts are a welcome addition to this blog.

  71. Absolutely Right Carlyle; It’s cover for Obama’s Right Wing agenda and policies along with the other weak unprincipled Demo-rats especially all those corrupted beyond hope of rehabilitation in our corrupt U.S. Senate…

  72. Off the wall but…

    Can you sue a political party for fraud? I’m one of those folks that reads the party platforms and the Dems are guilty of false advertising and/or fraud IMO. I want my vote back or compensation for having been victimized by fraudulent advertising. It’s a great platform but it’s not being implemented and Kagans nomination is just another example of the failure to implement. Srsly, how far short of your platform do you have to fall as a party before you’re just a bunch of grifters?


  73. The Democratic Party to which I belong, a bunch of grifters I love it that’s what they’ve become alright, especially in the U.S. Senate which is completely corrupted..!

    We should sue Obama for $1.00 there’s precedent for that now since Reagan, for lying and falsehoods misrepresentation malfeasance etc..

    Obama is Bush, with a brain..!

  74. Lottakatz wrote:

    “Can you sue a political party for fraud?”



    All politicians can lie all they want, mostly—it is their First Amendment right, to include their false campaign ads that would appear to the average citizen to be false advertisement.

    Alternatively, “fraudulent commercial speech” is *not* protected. There are times when we all must not lie and that comes under the purview of the judiciary, such as when giving sworn testimony under oath where we are subject to “penalties of perjury.”

    The Framers left it up to the citizenry—through voting—to decide which politicians’ words citizen voters are to trust.

    Perhaps there is a First Amendment attorney reading this thread who can expand on First Amendment rights, especially regarding politics, politicians, and their platforms. However, I think that any politician can stand on any stage platform and lie about any political platform to their lyin’ cheatin’ cold dark hearts’ content.

  75. lottakatz

    Off the wall but…

    Can you sue a political party for fraud? I’m one of those folks that reads the party platforms and the Dems are guilty of false advertising and/or fraud IMO. I want my vote back or compensation for having been victimized by fraudulent advertising. It’s a great platform but it’s not being implemented and Kagans nomination is just another example of the failure to implement. Srsly, how far short of your platform do you have to fall as a party before you’re just a bunch of grifters?


    I am so with you on this!! If you find one, let me know. We could make it a “class action”.

  76. Elena Kagan White House “Interview” Riles Reporters

    “It appears that Solicitor General Kagan did an interview yesterday right after the president’s announcement,” said a reporter. “You’ve now posted that on the White House Web site. Who did the interview? And can I have one?”

    “I think it’s — I think it’s on the website if you want to see it,” responded Press Secretary Robert Gibbs.

    Soon after, the reporter can be heard saying, an edge in her voice, “So a White House staffer interviewing her.”

    Gibbs says yes, and the reporter asks if Kagan would like to do another interview.

    “She has — she’s not told me that, no,” replied Gibbs, prompting the reporter to respond, “Tell her we’re deeply frustrated.”

    The decision to post an interview with Kagan conducted by a government employee – not a journalist – is in line with the Obama administration’s policy of regularly using new media tools to go around traditional media.


  77. As dean of Harvard Law School in 2003, Kagan condemned military recruiting policy as a “moral injustice of the first order,” and signed two amicus briefs seeking to strike down the Solomon amendment, the law President Clinton signed to prohibit taxpayer funding for schools that bar military recruiters.

    Yet, Kagan told the Senate Judiciary Committee during her 2009 hearings for solicitor general: “Had I been solicitor general at the time that the 3rd Circuit held the Solomon amendment unconstitutional, I would have sought certiorari in the Supreme Court.”

    Kagan’s 2009 back peddle continued, “Indeed, this would have struck me as an easy case: A federal statute had been invalidated on constitutional grounds and there were clearly reasonable arguments that could be made in its defense.”

    The Supreme Court unanimously upheld the Solomon amendment as constitutional in 2006. Even former ACLU attorney Ruth Bader Ginsburg, whose high court nomination Kagan helped shepherd for the Clinton administration, dismissed Kagan’s radical arguments against the law of the land.


  78. An essay that Obama Supreme Court nominee Elena Kagan wrote in 1980 has been unearthed and it provides some insight into her view of pro-life advocates. The article she wrote for the Daily Princetonian a week after Ronald Reagan’s victory in the 1980 election has Kagan disparaging pro-life advocates.


  79. Obama appointee to the Supreme Court, Elena Kagan, didn’t do her homework before arguing the Citizens United case on behalf of the Obama administration and the FEC — which her probably-soon-to-be colleagues on the Supreme Court wasted no time in pointing out. It came at the very beginning of her oral arguement, when one might expect a Solicitor General to attempt to impress the panel with her grasp of law and precedent: the crux of the case was the issue of limiting expenditures as an expression of political speech, not contributions. Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed.


  80. I think Obama summed it all up in bit of Orwellian word play.

    “…her openness to a broad array of view points”

    in that Kagan is a “yes-woman” doing whatever the money-interest of whatever the current position dictates, thus NEVER forms her own opinions. And in my opinion Obama is practicing ultra favoritism. I wonder how Josh Marshall over at TPM could go on and on about Bush’s Attorney General firings and yet, disregard this favoritism act from Obama.

    I haven’t seen Obama really make a single “progress/liberal” decision since he has been office and I strongly do not believe that Kagan has any progress viewpoints either. It’s like the greatest setup to the voting Dems, in that Obama appears to be 100% tea party Republican, so when Dems voted for him, they got a Republican and if they don’t in 2012, they still get a Republican.

    Obama shows Bush like actions more and more each and every day, seemingly to have no sincere desire to be ever be re-elected again. Who would have thought that an African American would NOT have appreciated Brown v Education or the opinions of Chief Justice Earl Warren. Obama keeps lying to liberals, and still they blindly pretend he would never fool them, so here we go again.

  81. ‘People look at the Republicans, recoil in horror then vote Democrat not realizing how damaging to their interests are the right wing politics of the Democrats.’

    there’s nowhere else to go right now…voting for the Dems prevents a wild swing to the right. Hopefully holding some kind of line till more rational heads prevail. Voting Indy dangerously splits votes and the Green party infrastructure is not yet solid😦

  82. As a conservative on the libertarian end of the spectrum and a big supporter of the Constitution as a whole and the Bill of Rights in particular, this is one of the first things I picked up on when I started researching Kagan! I’ve sent links to that “Regulation of Hate Speech and Pornography After R.A.V.” law review article to a bunch of people because it doesn’t seem to be something people are even talking about — I keep reading that “well, she’s avoided taking a stand on any major issues,” and thinking “What? I think trying to figure out how to make an end run around the First Amendment to suppress expression she finds offensive IS important!”

    But really, free speech isn’t a liberal issue, or a conservative issue; there are advocates AND threats on all sides of the political spectrum. The type of limits she seems to be proposing I associate more with the liberal threats to free speech, but the fundamental problem is the same whether she was coming at it from a liberal or conservative perspective. Just don’t call her “conservative” for trying to limit the First Amendment — that’s not really accurate!

  83. “…steadfastly stands against militarism, the concentration of power in corporate hands, and the disenfranchisement of the citizenry. It champions peace, social and economic justice, civil rights, civil liberties, human rights, a preserved environment, and a reinvigorated democracy. Its bedrock values are nonviolence and freedom of speech.”

    Your quote above is worth re-quoting because it comprises within it the reason that two old geezers such as we can agree on so much, yet apparently be on different sides of the political spectrum.

    The falsehood is the political spectrum itself which is a phony paradigm used to fool the masses. What we confront whether liberal or conservative, Republican or Democrat, is the naked power of those who control most of humanity’s wealth. Politics is about who stands on top of the heap and those who act as their courtiers. The rest of us just want to live our lives in peace in a world that treats us all fairly. Allowing those with more talent (or born to the manor)to succeed and reap rewards is no problem. The problem is in those, who like G.W.Bush,Donald Trump et. al., who were born on third base and thought they hit a triple. To ones such as those the rest of us exist solely for their needs and pleasures.

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