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. 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.

  2. 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.

  3. Then someone needs to establish a 3rd and new ‘Progressive Party’

  4. 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.

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

  6. Former Fed.

    I forgot one of my favorite US blogs, Alan Bean’s friends of Justice.

  7. 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,

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

  9. 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.

  10. CM,

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

  11. 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 @


  12. 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.

  13. 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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

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


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  19. 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.

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