I can't help but want to engage in a traditional Daily Kos meme chase, what with two related diaries casting blame in different directions on the Rec List. (I'm mimicking the original diary title directly, as well as avoiding the call out, because that's how this game is played.) I don't quite think that Barack Obama is "the" problem with Elena Kagan, although clearly the two of them appear to be cut from the same bolt of cloth. If she is a problem, she is one of her own making. self-designed, self-constructed, and kept in protective seal awaiting a moment such as this. And while Obama warrants substantial respect and deference, anyone who thinks that complaining about this appointment is "Derangement" doesn't know what is at stake.
The problem with Elena Kagan is that this is not the moment to nominate her. There are such better options out there, and we may be at the zenith of the ability to approve a progressive. The problem is that she isn't Pam Karlan, the likes of which we so badly needed on the Court.
I'll lay my cards on the table up front: like Russ Feingold, I tend to defer to the right of Presidents to choose their own people for the Court; it's one of the spoils of victory. I don't see the value of fighting to torpedo Kagan when Obama (whether led by his inner demons or his claque of moderate winged monkeys) is just going to appoint Merrick Garland or Janet Napolitano. Nor do I really think that Kagan would likely have been the swing vote that lost us the quartet of major Presidential power and national security decisions (Rasul, Hamdi, Hamdan and Boumediene) that we won during the last decade. Peer pressure doesn't go away on the Court, and the issue of, for example, whether the President or the Secretary of the Interior should have primary control over directing policy regarding drilling on public lands (which is what the "unitary executive" argument is really about except when Dick Cheney and his ilk get ahold of it) is neither that ideologically clear cut nor consequential. We care whether the President can lock up people forever on his own say-so; she just doesn't seem like a threat in that area.
But is she a disappointment? Oh, yes, absolutely. She's a disappointment because she's yet another in a series of liberalish (the "ish" is critical) who has gotten ahead, gotten this far, by hiding from the world a hint of progressive ideological fervor. She's another glass of milk competing with whiskey. And we could have gotten so much better.
To quote a politician I like: NOW IS THE TIME, AMERICA. Now is the time, before we lose our almost-supermajority in the Senate, to put the sort of person back on the Court who has been missing from it since, depending on your view, the departure of Thurgood Marshall or of the late-career Harry Blackmun. We have as many Senate votes as is likely in the middling future. Now is the time to give law students, legal scholars, those forming their judicial ideologies, someone on the highest court to look up to, rather than being able to hold the ancient Stephen Reinhardt of the Ninth Circuit as continued Chief Justice in Exile. Sidney Thomas, Diane Wood, Harold Koh, Kathleen Sullivan -- and most of all, Pam Karlan -- could have been that electrifying presence on the Court. No longer would Scalia be having all the fun.
We lefty lawyers have our heroes, all of them with at least two or three toes and an instep made of clay, who performed marvels in their time. Brandeis and Cardozo. Douglas and Black. Warren and Brennan. Briefly, Fortas and Goldberg. Marshall and yes, there at the end of his life, Blackmun. They never had a majority of the Court except, if memory serves, for one year, 1967. At that time, they had made the Supreme Court, if I remember the surveys of the day, the most hated institution in American government. It was the most hated because it was the most effective. They were people whose liberal jurisprudence sang to young lawyers as sweetly and brightly as Scalia and Posner and Easterbrook have sung to them over the last decades.
And they are all gone. They are all gone.
There is no one on the Court -- as good and decent as Stevens and Ginsburg and Sotomayor and (so long as you're not accused of a crime) Breyer are -- who is presenting a powerful counternarrative to Scalia's self-serving view of constitutional and statutory interpretation. No one! And those names above -- Thomas, Wood, Koh, Sullivan, Karlan -- they could have done it.
And it did not happen. And now maybe it will never happen.
This is a body blow. If you're not a progressive attorney, you may not get it, you may not understand what it means to make "the Courts" your main issue over many years of pallid or compromised Democratic candidates, because you know that it is in these decisions that a President leaves its legacy -- the legacy of the activists that help elect him or her as well.
And we won't have it.
Yes, we need a great conciliator on the Court. I would not have been sorry to see Kagan replace, for example, Kennedy, let along Scalia or Thomas. But we needed this leadership, this intellectual and moral leadership, now as well. As with Scalia, such leadership resounds through future generations. It matters.
You want to call us deranged by Obama's moderation? I say that before you ask us to fall in line, you should shut up and let us grieve for those great jurists of the past, whose like President Obama may have now ensured we shall never see again.
Just give us some time to grieve for how much better this could have been.