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. 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.

  2. 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.

  3. 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.

  4. 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.”

  5. 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


  6. 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.

  7. 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.

  8. 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.

  9. 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.”

  10. 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?

  11. 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.

  12. 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.

  13. 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.”


  14. 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.

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