Progressive for Kagan
By Al Giordano
On May 12, 2009, when the first US Supreme Court vacancy of the Obama era opened up, I wrote that I thought Solicitor General Elena Kagan, then 49, had “the inside track” for the post due to a variety of attributes that are just as true today. I was pleasantly surprised when my former Bronx neighbor Sonia Sotomayor got the robe instead, but that was as easy as rooting for the football New York Giants. (And how fortuitous it proved that Sotomayor was being a studious bookworm in high school instead of hanging out with your correspondent at night in the schoolyard of P.S. 8, or her confirmation hearings might not have been so smooth.)
Now Obama gets his second pick and he chooses Justice Thurgood Marshall’s former clerk, Kagan, a barrister that understands the Supreme Court and the Constitution better than any of her critics, right or left. And I’m heartened by authentic progressive Lawrence Lessig’s first hand testimony as to Kagan’s character and principles. “The Kagan I know is a progressive,” Larry writes, offering many examples as to why he makes that conclusion.
As a court reporter and civil libertarian journalist during many of my years in the United States – prior to ducking under the border thirteen years ago – I probably followed US Supreme Court and Court of Appeals decisions more closely than any reporter I knew for whom the Court itself wasn’t his or her beat (Cynthia Cotts, who later covered the Court for Bloomberg, being an important exception). And the dynamics of the Court in 2010 and in the years to come ain’t rocket science. There are nine justices: four arch reactionaries, four reliable liberals (including the retiring Justice John Paul Stevens, whom Kagan will replace), and one swing vote in Justice Anthony Kennedy. And if I were in President Obama’s shoes, I would look for a justice who could wow Judge Kennedy on the merits of law toward the left and civil libertarian side of the dial. I’d seek one who has the people skills and persuasive abilities to do just that.
According to Lessig, that is Kagan’s strong card: “it is this quality that distinguishes Kagan most strongly. For the core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side.”
That skill set is what we call community organizing. And the Supreme Court is a very small community of nine residents – four on the right, four on the left, and one that needs to be organized to win any vote there – that needs an organizer, like any other.
Now, it has been entirely predictable that the board members of Poutrage, Inc. – those self-proclaimed “progressive” pundits who have never been community organizers and resent Obama and all the rest of us that have actually done that work and won political battles because they keep failing at it – are caught up in their cyclical careerist protagonism over the Kagan nomination. I won’t mention any names, but of course Glenn Greenwald and Jane Hamsher are up to their Johnny-one-note tricks of getting their faces on the cable talk shows and in the media by proclaiming themselves “progressives against an Obama proposal” on any particular policy. They are as predictable as they are unconvincing, and although they always lose, they never change their bumbling tactics, I conclude that they are not interested in winning the issues they claim to care about. They are only interested in their own careers and egos and in fooling the gullible to send donations to their projects of self-enrichment. The issues are merely the means to try to make themselves relevant to the national discourse.
But back to the merits of the case: Secondarily, but also very important, if I were the President, I would look for a high court nominee that could get a few Republican votes in the Senate thus keeping rogue Democratic caucus members like Senators Joe Lieberman (CT) and Ben Nelson (NE) in line, because when the President has had to rely only on Senate Democrats, that’s when those guys start jumping ship and demanding deals for themselves in exchange for their votes (see: Health Care Reform). Kagan – like Sotomayor, a New York City native but her work as former Harvard Law dean makes her also a New England favorite daughter – puts Republican Senators Scott Brown (MA), Olympia Snowe and Susan Collins (ME) and Judd Gregg (NH) in easy position to support her nomination, and I think the regularly reasonable Richard Lugar (IN) comes along for the ride, too. And that provides the five-vote cushion to keep Senate Democrats in line and her nomination battle from having to expend political capital that needs to be used on immigration reform and other huge matters before the year is out.
Some other “progressives” (I put the word in quotes not to question their ideologies, but, rather because their use of the word excludes most non-white and non-college educated progressives, including me, from the term), however, seem not to care about immigration reform and all the other hard stuff that the Senate needs to do (or at least begin) this year and seem willing to throw all that out the window out of their desire for more symbolic gestures out of an Obama presidency.
Syndicated columnist and media critic Norman Solomon – who unlike the aforementioned ambulance-chasing “Progressives Against Obama” actually did have a youthful fling with grassroots community organizing and even went to jail for ten days for it – has decided that his own personal frustrations with Obama’s lack of left-wing symbolism should be played out over the Kagan nomination. For him, according to his own words, this court nomination battle is more about defining “progressives” in the US than it is about the merits of the case. Solomon writes: “some progressives have favored denial -- even though, if the name ‘Bush’ or ‘McCain’ had been attached to the same presidential policies, the same progressives would have been screaming bloody murder… But enabling bad policies, with silent acquiescence or anemic dissent, encourages more of them. At this point, progressive groups and individuals who pretend that Obama's policies merely need a few tweaks, or just suffer from a few anomalous deficiencies, are whistling past a political graveyard.”
With all due respect, Solomon at least is a kind of authority on the “political graveyard” because that’s where he and others of the liberal intelligentsia put us for various decades of the Apartheid Left in the United States: they were so obsessed with looking above and waging critiques of those in power that they ignored the necessary multi-racial grassroots organizing from below that is the only thing that ever wins any meaningful political battle. They became “leftish personalities” in the media world and constructed a mostly white and college-educated ghetto that largely defined what “progressive” or “liberal” meant, particularly during the 1990s and the Bush II era. In doing so, they alienated the working class and poor that are necessary to any progressive majority.
Like others of that tendency, Solomon preaches that “Progressives have a huge stake in averting a GOP takeover on Capitol Hill,” (that part we agree on), but doesn’t seem to grasp that derailing or delaying the Kagan nomination would aid that scenario, not hinder it. That’s because Solomon doesn’t really understand the electoral political dynamics in the United States, and why would he? He hasn’t done the grassroots organizing spadework, at least since the Reagan era, to have a clue as to how and why elections are won and lost.
When Solomon writes that, “if the president's nomination of Elena Kagan is successful, the result will move the Supreme Court to the right,” he also displays gross ignorance in the current dynamics of the Court, since the only thing right now that will move the court right or left will be Justice Kennedy’s vote and whether the left side can pull him or not.
When Solomon and some others like him argue that, “Progressives should fight the Kagan nomination,” he surely isn’t thinking or talking about African-American or Hispanic-American progressives, because if he did, he’d know the reasons why that simply is not going to happen. The two most important sectors – today and for the mid and long term future – in American progressivism have other priorities (ones that I share) that don’t include making the Kagan nomination a fight over how white progressives define ourselves.
I’m sorry to say it, because I think it is almost unconscious on Solomon’s part, but he displays more of a nostalgia for when progressives lost every single battle but at least he and some college educated colleagues got to call themselves the faces of American progressivism – a mantle that in the age of Obama they can no longer claim. And from that font gushes all the resentment and frustration. The rest is just window dressing and pretexts for another column.
The other “Progressives Against Obama” member I’ll take to the woodshed today is radio and TV host Cenk Uygur, for whom the Kagan nomination likewise is not really about Kagan but about Obama himself. He writes:
“My problem with her is my problem with Obama. Cheney and Bush moved the ball 80 yards down-field (sic, as anyone who knows the NFL spells it downfield, without hyphen), whether that was on executive power, warrantless wiretapping, pre-emptive wars or just about any other issue you can think of. And Obama's bold and brilliant response is to move the ball 10 yards in the opposite direction. Not good enough. Not remotely good enough…
“He is never going to throw the ball down the field. If you like two yard pick-ups by a running-back going straight up the middle, you'll love Obama. It's the Eddie George presidency. What he doesn't seem to get is that the other side is eventually going to get the ball back and then it won't seem like a major accomplishment that we went from our own two-yard line to our own twelve-yard line. It'll be viewed as a tremendous disappointment.”
Actually, Mr. Uygur, you ought to get to know the games of football and of politics before nominating yourself as head coach or quarterback. You should at least know the rules of the game. In football, moving the ball ten yards downfield is precisely good enough. It is called gaining a first down, that which allows your team to remain in possession of the ball and keep battling downfield toward touchdowns and field goals, while denying the opposing team time on the clock to do so.
The name-dropping of running back Eddie George is also revealing as to just how greatly Uygur’s comparison fails epicly: Eddie George, at Ohio State University, won the Heisman Trophy in 1995, and he rushed for more than 10,000 yards in only eight years in the NFL (presidents, by law, can’t last more than eight) and George helped bring his middling team to the Super Bowl in just four years, one first down at a time. In his first season with the Houston Oilers-cum-Tennessee Titans franchise (when George earned the NFL’s Rookie of the Year title), the team won just eight games to eight losses. By 1999, the Titans had 13 wins to three losses and went to the Super Bowl.
What got them there? First downs and ball possession, largely thanks to Eddie George: That team won by running the ball up the field three or four yards per play.
Guys like Solomon and probably Uygur (the jury is still out on the latter) are a bit distinct from pond scum like Greenwald and Hamsher, who are only in it for their own protagonist careers. The former are more akin to those fans in the bleachers always screaming at the quarterback to throw the long ball even against teams skilled at interceptions.
Meanwhile, the new star quarterback keeps controlling the ball, marching the team downfield, winning first downs every ten yards, and the Kagan confirmation is another touchdown that soon will happen. And then Obama’s second draft pick for the US Supreme Court can begin tag-teaming Justice Kennedy along with Justice Sotomayor and concretely move the Court to the left.
Thus, those who claim that the Kagan nomination “moves the court to the right” reveal only their gross ignorance about the dynamics of the US Supreme Court in the present day. And the unflappable head-coach-in-chief is absolutely correct to ignore the cat-calls from the armchair quarterbacks in the bleachers who have never won a game, and thus have no idea how it is really done.
Welcome to the NFL, boys. Wear a cup.
Update: Lessig weighs in anew, with an argument very similar to the one you've just read:
Barack Obama is appointing the 4th justice to the non-right-wing wing of the Supreme Court, not the 5th. If the appointment is successful, it will produce decisions with at least 5 votes that are closer to Obama's view of the Constitution than to Bush's.
So what kind of 4th Justice is likely to produce that 5th vote?
To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left. A bold, if sometimes bullying, extremist that marks off clearly the difference between the Left and the Right. Someone we could rally around. A new hero for an ideology too often too afraid to assert itself.
But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes. No doubt it would produce brilliant dissents. No doubt it would give the Keith Olbermann's of the world great copy. But it would fail to achieve the single thing we ought to be focusing on: How to build "coalitions," as Massachusetts Chief Justice Margaret Marshall put it to NPR yesterday, of five. Not compromises, not triangulations, but opinions that work hard to cobble from this diverse court a rule of principle that our side could be proud of...
Clearly, he has also studied the playbook and the rules of the game, which is the bare minimum we should all demand from any aspiring commentator.
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Just a friendly little tweak on the NFL thing (*wink*)
Submitted on May 11th, 2010 by teratologist (not verified)It's "New York Football Giants," not "football New York Giants." :)
Greenwald jumps the shark
Submitted on May 11th, 2010 by Jim (not verified)I read Greenwald's "analysis" when he first started his campaign against Kagan; I found it patently weak, a bunch of hyperventillating over nothing. Since the nomination was announced, Lessig and others have totally refuted his claim that she favors expanded executive authority in a manner that resembles the Bush administration's view. On the Maddow show, Lessig basically accused Greenwald of dishonesty in this respect (even while praising him generally).
For the life of me, I don't know why Greenwald gets the respect that he does.
Al - I keep coming back to
Submitted on May 11th, 2010 by Trinity (not verified)Al - I keep coming back to you for reasoned (and reasonable!) analysis.
I am already oh-so-very sick of the poutrage re: Kagen. Thanks for posting your thoughts on this.
Acronym
Submitted on May 11th, 2010 by Old Stone Face (not verified)Why not call Hamsher and Greenwald "progressives obstructing Obama proposals" since people look for acronyms?
Lessig vs. Dear Leader Round III or IV, I've Lost Count
Submitted on May 11th, 2010 by Lawnguylander (not verified)Here's Lessig taking Greenwald apart and exposing him as a liar, politely again, but even more effectively than last night on Maddow's show. Spread it wide because he doesn't deserve any of the worship he has come to expect from his internet sycophants. It's a rebuttal of Greenwald's hysterical reaction (football analogy, Antonio Cromartie ineffectively shoving Shonn Greene from behind after Greene had already scored that touchdown against the Chargers) to Lessig's comments last night.
Why did the Poutrage calss waint until now to attack?
Submitted on May 11th, 2010 by Zizi (not verified)Thanks Al,
As with all futile quests, I am trying to figure out why the poutrage class waited until NOW (with the exception of Greenwald who's been crowing forever) to stomp their piddy feet about an announcement that is absolutely NO surprise to anybody.
Kagan's name has been out there since her confirmation hearings for Solicitor general. Like you said, Al, she was a highly trumpeted contender for the SCOTUS choice last year along with Sotomayor. This year her name has never left the pages of both liberal blogs like Huffpo and the brick-and-mortar corporate media. So what gives, now?
It is all about driving foot traffic to their poutrage blogs. Period. It is all about money, and ginning up the fevered wild conspiracy theories not even the teabagger mob can dream up. It is very sad, this nihilistic streak that fauxgressives have honed to perfection. They can't handle governance, cuz it's too complicated and not bumper-sticker friendly. So they amp up the decibel level in their prolonged dying throes.
Constitutional law prof. Jonathan Turley when asked yesterday on Olberman's show which he would choose; a flaming liberal who lost the ultimate battle to sway a ruling or a consenus builder who could win an argument. He unashamedly chose the former. Why? He muttered something aobut standing tall for "civil libertarian" principles even if one loses the argument!!! I said "dumbass" people are hurting on this terra firma and he wants symbolic noisemakers who achieve nada!!
That just tells you, that none of these pouters has ever walked in the shoes of the poor, disenfranchised and who just need some "tangible relief" from their struggles. For the likes of Turley, Greenwald, Hamsher, this is all an abstract intellectual exercise.
Because the actual FACT of the matter is, they have raved and ranted about purity of principles while the Wingnuts are ERODING those very rights the pouters rail about, as we speak, state by state, city council by city council, school board by school board.That is why we are getting the Arizona immigration decisions, the Texas Schoolboard revisionist history decisions, some states' decisions to not extend unemployment benefits, to reject education reform, Arizona's earlier decision to not implement the Children's Health Insurance program (CHIP) etc etc.
Did I see any of the Greenwalds, Hamshers. Sirotas, etc. take to the streets to protest the latest madness to passed into law in Arizona? No. Who did we see in the streets? Community organizers, and black & brown civil rights leaders, and ordinary citizens.
I would have thought the made-for-tv poutrage faces would use their newfound celebrity to draw attention to ACTUAL violations of civil rights. Not a single one was in sight, and likewise the corporate media failed to cover 1 million strong protestors. But the media rushes to cover 600 teabaggers gathered in the streets.
Right on time....
Submitted on May 11th, 2010 by MK (not verified)Honestly Al, I could just kiss you. A bunch of us were out at dinner yesterday and were making a similar point as the one you advanced with respect to the sheer out-of-touchness of so many white progressives in the era of Obama. It has to be said that a number of my white progressive friends are clued in and are striving to build multi-racial coalitions in order to actually "win." As a radical woman of color, I welcome those folks. To the rest, I say "you've got to move, or be pushed out of the way." Times have changed and Greenwald, Hamsher, Naomi Klein and that ilk don't even notice it. Sad and pathetic. They are missing out.
"those self-proclaimed
Submitted on May 11th, 2010 by woody45 (not verified)"those self-proclaimed “progressive” pundits who have never been community organizers and resent Obama and all the rest of us that have actually done that work and won political battles because they keep failing at it – are caught up in their cyclical careerist protagonism over the Kagan nomination."
There is no substitute for boots on the ground. Giving money is great but until the blogosphere mobilizes into the offline world it's noise.
The final day of the HCR was a great example. Tea Partiers showed up. They were wrong as all get out but at least they showed up. There should have been a call to our side for 25,000 people to do the same. It's not like we didn't know what was going down.
"In doing so, they alienated the working class and poor that are necessary to any progressive majority."
Which explains why 90% of self identified progressives support this President. I bet I can guess where the majority of the 10% come from.
"What he doesn't seem to get is that the other side is eventually going to get the ball back and then it won't seem like a major accomplishment that we went from our own two-yard line to our own twelve-yard line."
Ever heard of punting?
Law Law Land
Submitted on May 11th, 2010 by berpin (not verified)Just think of how enabling for crucial Policies implementation of Immigration, Education, Health Care, Electoral matters, Social Justice and more, a 'Liberal leaning' interpretation of Constitutional Law would be; empowering indeed.
Kagan v. Roberts
Submitted on May 11th, 2010 by Tom W. (not verified)Well, I like the Kagan appointment - and not just because she's a Mets fan (to balance Justice Sotomayor and Mr. Giordano). And I think the 'move the court to the right' argument doesn't wash - especially if you look at it case by case, you can't see a way she votes any less progressively than Stevens.
Couple of points:
- I disagree with Greenwald on this, but I agree with him on much of what he says about the excesses of executive power (Cinton, Bush or Obama) and civil liberties. He's a very necessary and skilled gadfly and the White House pays attentions. I'm glad he's around.
- I agree with the "persuasion" analysis here, Al. It's a very good point that Lessig and others make. Part of me did go down the "yearning for a hard-core lefty" path and I sympathize with the argument that starts "Why don't we ever nominate real libs like the GOP nominates real conservatives." But the in-court politics are as you describe, so it's a canny move.
- Finally, I see this - to no small degree of pleasure, I'll confess - as a huge F-you from the President to Chief Justice Roberts, to whom Kagan has served as a feisty bete noir in her short tenure as SG. She will undoubtedly drive him up the wall, hopefully leading to an early retirement!
Gotcha!
Submitted on May 11th, 2010 by Al GiordanoTom W. - Thou Shalt Not Presume! Although I don't follow baseball (chess moves faster!), for the record: when the Subway Series took place I rooted for the Mets vs. the Bronx Bombers, being a member of the class of '69 Ya Gotta Believe generation of NYers. As kid I attended football at Yankee Stadium but baseball at Shea.
Et Tu, Pond Scum?
Submitted on May 11th, 2010 by cage free brown (not verified)Al, I think the work you do here is great. Normally I only speak up when I don't agree with you which is pretty futile, maybe I'm a glutton for punishment.
I agree that Kagan is a fine choice. I agree that the people you point out look pretty bad and don't seem to be presenting a persuasive argument. I agree with any free psycho-therapy you want to give those people - it's your blog.
I thought Greenwald came off very poorly on R.Maddow and even more poorly on "Democracy Now". I guess where I part ways with you is that I don't think that's a bad thing.
Conservatives are on the airwaves calling Kagan a lesbian, saying she's ugly and unamerican. the conservative "base" always gets to air their ugly laundry well, why the hell shouldn't the liberal "base"
sure, maybe you and me don't think they've got two sticks to rub together but they get to make their case. I think they're a little star struck myself. still, I think if Cenk or Hamsher or anybody who wants to wear the scarlet "L" around their neck is willing to go on t.v. then I think that's a good thing.
They won't do her boat any harm, they're torpedoes aren't good enough. I think both Maddow and D.Now did their viewers a service by hosting a debate. It's nice to see a forum for ideas this day and age. the strong ideas won - anybody can see that. what's to be gained from calling anybody "pond scum"?
Pond Scum
Submitted on May 11th, 2010 by Al GiordanoCage free brown - To answer your question, because there are no two better words to describe how I view those two individuals, out there claiming to speak for me and every other progressive American when we never elected either to do so. However unfair that is to lake algae, that's my story and I'm stickin' with it!
Drugs, Chess and the White House
Submitted on May 11th, 2010 by Ben MaselThe 2010 National Drug Control Strategy is out, reiterating the failed policies of the last four Administrations.
Included, this gem
We have many proven methods for reducing the demand for drugs. Keeping drugs illegal reduces their availability and lessens willingness to use them. That is why this Administration firmly opposes the legalization of marijuana or any other illicit drug. Legalizing drugs would increase accessibility and encourage promotion and acceptance of use. Diagnostic, laboratory, clinical, and epidemiological studies clearly indicate that marijuana use is associated with dependence, respiratory and mental illness, poor motor performance, and cognitive impairment, among other negative effects, and legalization would only exacerbate these problems.
Do President Obama and Drug Czar Kerlikowski REALLY believe this? Let's find out. I've been a heavy cannabis consumer by anyone's standard for 41 years, so if they're correct, I must have suffered "cognitive impairment" aplenty. I challenge either of them to a chess match, 2 dimensional, so everyone knows the rules. Serious money ($20,000?) cash on the table, optional.
(I've offered similar challenges to 2 of Kerlikowski's predecessors, face to face, Robert S. Dupont and William "Highstakes" Bennett in reponse to their 'mental impairment' remarks, Both chickened out.)
The Ed Kranepool Society
Submitted on May 11th, 2010 by Tom W. (not verified)Then we're members of the same generational baseball class, Al! A formative era that aligned us, dare I say it, with the working classes that packed big Shea.
I take it you agree on the anti-Roberts motivation, at least in part? It's clearly both a reaction to the dismal Citizens United ruling and to Roberts' activism (and perhaps even, his persona)...
Ben Masel beat me at chess
Submitted on May 11th, 2010 by Al GiordanoA word to the wise is sufficient. He didn't just beat me. He cleaned the floor with me.
Al: Do I correctly assume
Submitted on May 11th, 2010 by Ben Masela full length feature on the "Strategy" is forthcoming?
Moving the Chains
Submitted on May 12th, 2010 by massappeal (not verified)Charlie Pierce (a great writer, though I disagree with his view of the Kagan nomination) wrote a nice little book about Patriots QB Tom Brady a few years ago titled "Moving the Chains".
One of Brady's strengths as a quarterback has been his ability to keep "moving the chains"---one first down after another. In fact, early in his career, one of the knocks on him was that he couldn't throw long.
When your team is behind (after a generation of growing conservative power) and deep in its own territory (after 8 years of Bush-Cheney, with two wars and the Great Recession raging), it's difficult to have the disciplined patience to execute one play at a time (passing the Recovery Act, getting Sotomayor on the Court, passing health care reform, getting a Hilda Solis in at Labor, getting the regulatory agencies (e.g., SEC, FDA, OSHA, EPS) functioning again), gaining a few yards at a time, to move the ball forward.
That's what Obama is doing...as I see it. It's a strategy that has its own risks, but I think it's the one that has the greatest potential to initiate a decades-long progressive shift in American politics (one of Obama's key reasons for running for president).
@ Ben Masel
Submitted on May 12th, 2010 by Lorie CavinHere's the latest from Mid MO concerning the SWAT invasion.
http://www.columbiatribune.com/news/2010/may/11/police-review-board-prep...
More here:
http://narcosphere.narconews.com/notebook/don-henry-ford-jr/2010/05/fuck...
@ Ben
Submitted on May 12th, 2010 by Al GiordanoBen - To answer your question, actually... no. The real action right now on drug policy is not emanating from up above (and the czar's office plays the hawk role which IMHO provides cover for under radar changes that take time, especially since rogue law enforcement agents keep subverting the orders from on high), but, rather, from down below.
To wit: This November's referendum in California to legalize and tax marijuana, and its result, will have more to say about the next steps in US drug policy than any piece of paper from the drug czar's office. I may actually head up there this autumn and cover it for a spell.
Small correction Mets-wise
Submitted on May 12th, 2010 by Lucidamente (not verified)"Ya gotta believe" was Tug McGraw's phrase, and dates from the 1973 team, which came out of nowhere to win the division, the pennant, and take the mighty Oakland A's to a seven-game series. The 1969 team, the Miracle Mets of happy memory, won the Series in five.
That said, thanks for the timely post; I'm beginning to think of the poutrage crew as the mo(u)thrage crew: every move from Obama is like a flame that attracts them to shoot off their mouths (and then crash and burn upon contact with fact).
Mouthrage!
Submitted on May 12th, 2010 by Al GiordanoLove it!
Meh
Submitted on May 12th, 2010 by Sloane (not verified)I'm inclined to say, "Kagan seems like a very bad choice", but unfortunately her record is so sparse it's hard to say that.
The political argument doesn't make sense here at all, Sotomayor was easily confirmed with support from Republicans, why not choose another justice with her profile? There's good candidates out there, who are lauded to be just as persuasive but with better known records.
Well, actually, we know why Obama wants Kagan. Obama has proven to be a continuation of Bush when it comes to wielding presidential power, and it wouldn't make much sense for him to appoint a judge that opposes those policies.
Cognitive Crossfire
Submitted on May 12th, 2010 by Al GiordanoSloan - You start out sensibly enough saying "her record is so sparse it is hard to say" (that Kagan would be a bad choice).
But how do you then reconcile that with "Obama wants Kagan... a continuation of Bush and... (not) a judge that opposes those policies."
If her lack of judicial record makes it hard to say that she's a good or bad choice, how do you then extrapolate so definitively how she would rule on future matters?
Fact is, as clerk to Justice Thurgood Marshall, Kagan was part and party to some of the most ringing pro civil liberties decisions and dissents in Supreme Court history. That is a record. Judges - having the pick of the litter for their personal clerks - choose clerks who think like them and help them achieve their goals.
But you're behaving like Uygur here. For you, this isn't about Kagan, but rather a canvass upon which to paint your apparent obsession with Obama.
Relevant Diary on DailyKos
Submitted on May 12th, 2010 by JCK (not verified)http://www.dailykos.com/storyonly/2010/5/12/865581/-The-Problem-With-Ele...
I think this pretty much sums up the liberal outrage over Kagan.
@Al
Submitted on May 12th, 2010 by Ben MaselThe discreet posititive steps advanced in the ONDCP strategy seem to require some sort of Congressional action.To the extent they can be done as budget riders, Dave Obey should be able to get it done on the House side, as the balance in the Appropriations Committee has shifted with Murtha gone.
Doesn't your avowed broader strategy suggest working on the Senate side for actual enactment of those advances the Administration has proposed?
Notable, funding for needle exchange the removal of access to education and housing after convictions "and in recovery."
The Stragy document's tweaks in the sentencing laws are following what was already underway in House Judiciary.l
A parallel tale: How Labour lost the chance to stay in power
Submitted on May 12th, 2010 by Tribunus Plebis (not verified)There's been an interesting parallel in the UK in the past few days to the phenomenon well-described by Al as the self-inflating and simultaneously self-defeating "poutrage" of those who style themselves as more loyal defenders of the progressive faith: The abject failure of the Labour Party on Sunday and Monday of this week to grasp victory from the jaws of defeat.
Here's what happened, for those who haven't followed the UK election closely: No party won a majority of seats in the House of Commons in last Thursday's national election. The Conservatives, out of power for 13 years and headed by a handsome, articulate young leader, won 306 seats, 17 seats short of a majority. The Labour Party, appearing tired and exhausted (in power for too long, and cursed by an Iraq-invading leader who wore out his welcome, Tony Blair, as well as his successor, Gordon Brown, who was ponderous and awkward) won 258 seats. Meanwhile the centrist libertarian party, the Liberal Democrats, whose leader had wowed the nation with his performance in the prime ministerial debates, Nick Clegg, won 57 seats. So either the Tories (the Conservatives) either had to try to govern as a parliamentary minority -- always a wobbly thing in British history -- or persuade the Lib Dems to join them in a coalition. Clegg obliged them to the point of saying that since the Tories won the most seats, it was proper to consider a coalition with them first, though he was also free to negotiate -- and later did so -- with Labour.
Hungry for power, David Cameron, the Conservative leader (who is a moderate), promised Clegg and the Lib Dems to incorporate most of the Lib Dem education and environment policies into the coalition's program, exempt all Britons with less than 10,000 pounds' income from taxation (a key Lib Dem platform plank), and accommodate the Lib Dems' insistence on major electoral reform, allowing the country to vote on a referendum to move toward proportional representation, which would level the political playing field and, long-term, almost certainly benefit progressives.
But the Lib Dem rank-and-file remained distrustful of the Tories, particularly on budget issues, so Clegg told Labour that if Gordon Brown signalled he would resign, he'd be willing to negotiate a coalition with Labour. Brown obliged, and those negotiations began, and the British media concluded they would succeed, since the Lib Dems and Labour are closer ideologically than the Lib Dems are to the Conservatives. But to the Lib Dems' astonishment, the Labour negotiating team was ambivalent and condescending, and promised the Lib Dems less than what the Conservatives had promised. Nick Clegg was viewed as having no choice but to turn back to the Conservatives -- and in less than a day (yesterday), David Cameron became prime minister and Nick Clegg became deputy prime minister in a new reform coalition that will remake British politics with centre-right policies instead of the centre-left policies that a coalition with Labour would have produced.
What's the reason that British political history has taken this potentially dramatic turn? The pouting of the hard Labour left, which had difficulty taking seriously the Lib Dems, on whom they had looked down as political step-children for decades. It was beautifully summed up by Martin Kettle, a columnist for The Guardian:
“Labour remains at heart a party of opposition and of victimhood. Labour is not a party with a clear governing project. It prefers the relief of blaming others rather than the challenge of self-criticism. It is far too comfortable with the ethos of betrayal. The debates that will now begin are certain to be dominated by the view that everything would have been just fine had it not been for the curse of New Labour [i.e. Blair and Brown, comparable in the British view to a centre-left figure like Obama].”
So who are we, Democrats? A party of "victimhood", preferring -- like the "poutrage" artists -- "the relief of blaming others"? Or can we notice bold opportunities when we see them, and make the pragmatic compromises necessary to exercise the power that political opportunities have given us?
Bless You!
Submitted on May 12th, 2010 by Jonathan (not verified)Finally, rational thinking. I can't go on Kos without seeing another blog about how horrible Kagan is or how Obama's betrayed us. And even the blogs that show reason (such as the brilliant blackwaterdog diaries) and littered with comments that sound too much like someone yearning for the days of Ralph Nader.
So, thank you once again.
Has Obama Made a Big Mistake -- for His Agenda?
Submitted on May 13th, 2010 by Justina (not verified)Congratulations on coining "poutrage". It aptly described much of the knee-jerk reaction of some on the Left to Obama's selection of Kagen. TV host Cenk Uygur is usually spot-on in his criticisms of Obama's Republican-lite agenda, but in the case of Kagen, I think he is wrong.
Anyone who worked for the election of Liz Holzman to Congress, applied for clerkships and was hired by two of our most civil libertarian appellate judges (Abe Mikva and Thurgood Marshall), is hardly likely to be a stealth conservative. The opposite may be true, as Ms. Kagen, reputed to be a superb strategist, reportedly wanted to be a Supreme Court justice since high school. Rather than making millions as a lawyer or CEO with any of Wall Street's top firms, a path that was certainly open to her, she chose academia and government service.
Kagen also carefully refrained from leaving too many obviously ideological footprints along the way, aside from her Princeton thesis on the development of the socialist movement in New York in the early 20th century.
Let us hope that Kagen's interest in the unitary executive question stems from appreciation and support for Roosevelt's use of his executive powers to recover from the Depression in the 1930's. Lord knows we need a another Roosevelt to restore a sane society, if not a truly human socialist one.
Cenk is absolutely correct in asserting that Obama, really a Rockefeller Republican, is continuing the Bush corporatist policies. But he MAY have made a mistake for HIS agenda with Kagen.
Let us hope that Kagen will have the courage, as a Supreme Court justice, to vote her progressive Democratic roots, convince a majority to do likewise, and up-end the Bush-Obama reactionary, pro-corporate control moves.
Who her friends are vs. what she says and does
Submitted on May 13th, 2010 by Nell (not verified)Since there is so little to go on in the way of documentable opinions expressed (and since Kagan appears to have reversed the view she expressed in 1996 that judicial nominees should be willing to answer questions about political issues), we are left to decide what's more convincing or important -- the judges for whom she's clerked, or the few on-the-record positions she's argued in the recent past?
These are the on-the-record positions I find most unsettling, given the kinds of cases that the Supreme Court has been hearing in the last seven years and is likely to rule on in the future:
- Kagan's view of the terrorist attacks of September 2001 not as crimes but through the paradigm of the U.S. at war, with the entire world a "battlefield". (expressed explicitly in her confirmation hearings for the Solicitor General position she now holds)
- Her argument before the Supreme Court that lawyers for persons accused of terrorist crimes make themselves by their representation guilty of material support for terrorism. This went a bit far even for some of the rightists on the Court, who offered her the chance to back off the assertion (which went further than and was not necessary to the government position she was arguing as SG). She did not do so; both conservative and liberal justices specifically took issue with that assertion in the opinions issued when they ruled (solidly, not narrowly, against the government position).
Even granting Al's point that it's essential to get a Supreme Court nominee passed without using any political capital because it must all be hoarded for passing immigration reform (which I don't agree with, but granting for the sake of the argument), it's difficult to believe that there is not another equally easily confirmable nominee whose stated positions on civil liberties, crimes of terror, and executive power are less like the Bush-Cheney stance and more in line with the change Obama supporters thought they were voting for.
Those of us with concerns and doubts may be turn out to be pleasantly surprised by Kagan's performance on the Supreme Court. But, given this administration's record of actions so far on issues of civil liberties, detention, U.S. torture, and processes by which those suspected of and charged with terrorism-related crimes are tried, being pleased with her rulings and effect on the court will be a surprise.
This area of public policy is one in which the decisive framework is set from the top -- by the national security state, checked only by the federal courts and especially the Supreme Court, and by (if it chooses to do so) the Congress. Congress has been almost supine in that respect, and it will be a very long-term struggle to change their approach. In the meantime, the Supreme Court has been the only real check to executive overreach. I sincerely hope my fears about Kagan are unrealized; I will cheerfully admit how wrong I was if so.
@Nell
Submitted on May 13th, 2010 by Chris (not verified)I don't think you understand the nature of Ms. Kagan's job. As the Solicitor General, its her job to argue the government's case. It doeesn't matter what the government's case is, she must argue it to the best of her ability regardless of her personal feelings on the matter. The government, of course, is deserving of a good legal advocate just like a corporation or a real, flesh and blood person. And a good legal advocate gives her clients the best defense she can muster, regardless of circumstance. Your mistake is assuming that the attorney's private views are the same as her client's. Based upon her scholarship and the words of her colleagues, this is extremely unlikely to be the case.
@Chris
Submitted on May 13th, 2010 by Nell (not verified)I anticipated a response like yours, and attempted to deal with it in advance by making the point that Kagan's equating a lawyer's filing an amicus brief or helping an organization accused of terrorist acts file a petition with material support for terrorism was not essential to the general point she was arguing on behalf of the government.
I understand perfectly well the role of a Solicitor General, and the fact that arguments made in that role may not reflect personal views. But this one was both unhelpful and unnecessary to the government's position. If it was merely zealous representation, it was highly ineffective -- raising the question of how good Kagan will be at the internal lobbying her supporters claim as a strong point. If it was sincere, she's going to be a fifth vote for further curtailment of constitutional freedoms.
It's also remarkable how little actual court experience Kagan has. Her appearances before the Supreme Court represent all of it -- truly, starting at the top. Sure, there have been many SC justices who have not been judges, but Kagan hasn't practiced law at any level other than clerking -- for some distinguished and admirable judges, to be sure. But that's a very thin record for the job she's about to have for the rest of her life.
Clerking
Submitted on May 19th, 2010 by ikl (not verified)In general, I wouldn't infer too much about someone's substantive views from who they clerked for. Clerks don't necessarily agree with the judges for whom they work. In fact, they don't necessarily even share the same basic ideological orientation. Scalia, for example, regularly hires liberal clerks . . .
I wish that you actually
Submitted on May 21st, 2010 by The Bagman (not verified)I wish that you actually engaged on the spirit of Uygur's analogy rather than snarkily dismiss it. His argument is that Obama is unwilling to use his mandate to deliver anything close to what he should be able to given how much power the 2008 elections gave him. A better analogy might be an excessively tight poker player--he rarely loses money, but he leaves a lot of money on the table because he's so risk averse.
But beyond that, what's the big deal about people criticizing Obama from the left? Even if you think they're totally disingenuous, what's the harm? If anything, it lets Obama be the centrist, and then move the center to the left. If nobody ever comes at Obama from the left because they take your advice and shut up, then he's going to be perceived as the absolute left fringe by the whole country, not just the right wingers.
@ bagman
Submitted on May 22nd, 2010 by Al GiordanoBagman - I'm not telling anyone to shut up. I'm saying they sound stupid and they are ineffective. Of course anybody has a right to criticize the president or any other official. But guess what? I, too, have the right to criticize anybody I want.
Uygur is behaving like a douche. He really thinks that he knows exactly how much political capital Obama has on each and every of hundreds of issues and priorities, he thinks he knows how much should be bet on which hand, and which hands to bet on. Apparently you do, too. Well, I think you're both very naive.
Finally, spare us the "victim mentality" pose that somehow me or anyone else are trying to silence yours or anyone else's speech. We are simply countering it with better speech. Why is it that when some liberals get criticized they immediately hallucinate that they are censored? How childish is that?