As every Kossack knows, President Barack Obama is in the midst of making an extraordinarily important decision: choosing a replacement for retiring Associate Justice John Paul Stevens. Appointed by Gerald Ford, Stevens is widely acknowledged to be the most liberal member of the current court. This says less about Stevens himself than it does about the Court on which he sits. Stevens remains what he always was: a moderate Republican. But these days, that puts a justice on the far left of a court that has contained no actual liberal voices since the retirements of William Brennan in 1990 and Thurgood Marshall in 1991.
Now the White House is mounting an aggressive defense of the apparent frontrunner for that post: Solicitor General Elana Kagan. Some of that pushback is aimed at rightwing slurs about Kagan's private life, but it's also aimed at progressives, who've raised questions about Kagan's positions on executive power and civil liberties.
As John Paul Stevens himself has noted, with the exception of Ruth Bader Ginsburg, who replaced conservative Byron White, every single nominee to the current court moved it further to the right...and that includes both Steven Breyer (who replaced Harry Blackmun) and Sonya Sotomayor (who replaced David Souter). It would be a monumental lost opportunity--and political tragedy--if, yet again, Obama decided to move the court rightward with his selection to replace Stevens.
Many progressive court watchers are deeply concerned that Kagan would move the court still further to the right and that her views on executive power are closer to Clarence Thomas and Antonin Scalia than to John Paul Stevens, who has been a key voice of sanity on these issues.
Glenn Greenwald, who wholeheartedly backed Sonya Sotomayor's nomination last year, has been leading the way in makingthe case against Kagan. Kagan has an incredibly thin record, but to the extent that her views are at all clear, they seem to back the expansive vision of executive power pioneered by the Bush presidency and continued by the Obama White House.
As defenses of Kagan trickle in, it becomes clear how weak the case for her from a progressive angle really is. Glenn Greenwald dealt with three such defenses yesterday. Former Soliciter General Walter Dellinger, writing in Slate makes what appears to be the best effort at a defense, dredging up a 2007 speech in which Kagan, who was largely silent on the crimes of the Bush administration, vaguely criticized John Yoo and misrepresenting a 2001 law review article on presidential power that Kagan wrote before 9/11 and which Dellinger presents as having a less expansive view on executive authority than it actually does.
Linda Monkwriting in the HuffPo uses what one might call the Souter defense. "The truth is, we don't know what any justice will become once she joins the Court," Monk writes (as Greenwald points out, this somehow wasn't the case with Alito, Scalia, Roberts, and Thomas). And, Monk reasons, since Earl Warren oversaw Japanese internment as Governor of California before becoming one of the greatest defenders of civil liberties on the Court, Kagan's defenses of robust claims of executive authority actually prove that she will be (in the words of Monk's title) "The Next Earl Warren."
Finally, Tom Goldstein of SCOTUSblog admits that Kagan would move the Court to the right, but suggests that we would be silly to worry about this as the Court is losing, in Stevens, its most liberal member and most senior Associate Justice. So moving further to the right is somehow automatic.
In short, there appears to be no real argument against the concerns that Kagan would move the Court to the right, beyond the shot-in-the-dark, everyone's-a-potential-Souter line that gets hauled out every time pundits want to convince progressives to keep their powder dry in the face of another rightward judicial lurch.
Nonetheless, there are some moderate reasons for hope here. This week, a number of news outlets announced an apparent short-list of possible nominees from the White House (this is the ABC News version): Solicitor General Elena Kagan; Judge Merrick Garland of the U.S. Court of Appeals, D.C. Circuit; Judge Diane Wood of the Seventh Circuit Appeals Court in Chicago; Democratic Michigan Gov. Jennifer Granholm; former Georgia Supreme Court Chief Justice Leah Ward Sears; Homeland Security Secretary Janet Napolitano; Harvard Law School dean Martha Minow, who was once the president's professor; and Judge Sidney Thomas of the Ninth Circuit Appeals Court in San Francisco.
The list isn't great...but there are some very good names on it. In particular Judge Diane Wood would be an excellent nominee. Not what I'd most want on the Court--a true liberal in the Brennan or Marshall mode--but an established jurist with an excellent record who would not move the court rightward.
The frantic attempts to defend Kagan's record unfortunately suggest that she is the frontrunner at the moment. But they also suggests that the White House is aware that it has a problem with progressives should Kagan be the choice. This is a problem they cannot afford to have. They know that whomever they nominate will receive massive resistance from Republicans simply because they made the nomination. At this point, Orrin Hatch would probably vote against himself if he were the nominee of a Democratic president.
This is the time for progressives to make absolutely clear that Elana Kagan has the potential to be the Democratic Harriet Miers. The White House will save itself--and the nation--a lot of trouble if they look elsewhere on their list.