It's happened on occasion that I disagree with Glenn Greenwald's logic or policy positions. More often, I disagree with his tone and polemical style. Greenwald seems to be too much a prosecutor and as a result, he has a tendency to "take no prisoners" in his arguments about everything from warrantless wiretaps to FISA to healthcare.
But in his Salon blog today on Elena Kagan and her defenders, I found a different kind of argument which I find commendable. Greenwald takes measured aim at three different apologies for Kagan and does an admirable job of refuting claims and highlighting weak arguments. And he does it all with a style and tone that makes me want to hear more.
And we should want to hear more from Glenn Greenwald. He's freaking brilliant, and he loves America and the Constitution, perhaps as much or more than any of our elected officials who have pledged to protect and defend the Constitution.
And so, I think you ought to read it.
Greg Sargent made an interesting point (picked up by HuffPo's Sam Stein, who in turn got picked up by Glenn) on Friday, suggesting that the White House's "scorched-earth defense" of Kagan implied that she is a likely frontrunner for the nomination. Sam Stein put it this way:
The outreach left the impression that the White House has been aggressive in defending Kagan from attack. That, in turn, suggests that they have plans to tap her to replace Justice John Paul Stevens on the court.
But even more important than the defense against the right-wing attack by former Red State hack Ben Domenech, Stein reported that Anita Dunn had been actively recruiting progressive allies to hit back against Glenn Greenwald.
And that's where Glenn picked up today.
I have no idea if there is a causal connection, but there quickly emerged three pieces criticizing my argument and offering ringing endorsements of Kagan: this piece at Slate by former Clinton Solicitor General Walter Dellinger; this Huffington Post argument by legal analyst and author Linda Monk; and this cliché-filled, ad hominem, substance-free rant from Akin, Gump partner Tom Goldstein of SCOTUSblog. The first two raise substantive points meriting some responsive attention, though there are also a couple of facts about Goldstein I'm going to highlight.
I want to stop a minute here to weigh in on the collective tea-leaf reading. First of all, it makes perfect sense to me that the Obama administration would defend Kagan. After all, regardless of whether she gets nominated for SCOTUS, she's already serving the Obama Administration as Solicitor General. Attacks of all kinds from any quarter could diminish her credibility as a solid legal scholar charged with representing the government before the SCOTUS, and this gets all the more important when you see an SEC civil suit against Goldman Sachs executive Fabrice "Fabulous Fab" Tourre (not to mention the executive order from Obama to HHS or the weapons charges filed against Blackwater execs). But what's more, attempts to marginalize Glenn Greenwald are strategic as the Obama administration prepares for the 2010 midterms with Democratic enthusiasm at a low ebb and the Republicans out for blood.
Greenwald doesn't care about elections. He just cares about protecting and defending the Constitution and promoting progressive values.
No matter what else happens between now and 2012, Obama's choice to replace John Paul Stevens will be one of the most consequential decisions he makes. The Supreme Court can play a decisive role in virtually every issue I write about here, as well as most other key political questions. There's no reason that those who advocated for Obama's election -- as I did -- should adopt a passive posture of simply waiting quietly for Obama's choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court (much the way conservatives exercised such judgment when Harriet Miers was selected by George Bush).
I'm not over-impressed by Greenwald's analysis of Kagan. It feels a little bit to me like eisegesis (reading into the texts) than exegesis (reading the whole body of work and allowing it to speak as a coherent whole). But maybe that's because Greenwald's done so much reading on Kagan (and other nominees) that he can't easily summarize it in a few blog posts. What Greenwald has done, however, is to highlight some areas of concern for progressives so that they don't end up with buyer's remorse if Kagan is the eventual nominee. (Glenn also unwittingly gives the White House room to claim that Kagan's a centrist by serving as a liberal foil to their "moderation".)
He goes on to note that he'd really like to see Diane Wood as the "moderate" nominee.
The most persuasive argument against Kagan is the one I've yet to make. I've spent substantial time learning as much as possible about 7th Circuit Court of Appeals Judge Diane Wood: reading countless cases and articles, interviewing (on the record) former clerks and colleagues, and comparing her jurisprudence to Justice Stevens', and I intend to have that piece posted on Monday. Although Judge Wood is a bit more cautious and moderate a jurist than some of the candidates I'd prefer if it were my choice (such as Stanford Professor Pam Karlan), the available facts establish her as the virtually ideal person to replace Justice Stevens.
But what really impressed me was the way that he read the three defenses of Kagan and responded to each.
It's worth a read, if you haven't already taken a look.