Obama is nominating Elena Kagan to the Supreme Court. This has given a lot of us pause, as we are unhappy with her views on what I like to call the "Bush's 3 Ts" - torture, terror and tyranny. From Greenwald's excellent Salon piece:
The New York Times when she was nominated last year for Solicitor General: "she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition."
I think we are all getting bent out of shape over nothing, and are missing the big picture positive Kagan brings. And yes, this is the Obama playing 3-D chess argument.
The argument against Kagan is simply that she is enthralled with Presidential power:
Such claims of executive power are not limited to the current administration, nor are they limited to politicians. Take, for example, Dean Elena Kagan's rich celebration of presidential administration. Kagan, herself a former political appointee, lauded the President's ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President's ability to overrule bureaucrats "energize[s] regulatory policy" because only "the President has the ability to effect comprehensive, coherent change in administrative policymaking" .
I think we are being reactionary here. We are still smarting from what Bush/Cheney did to the Constitution, more than a little unhappy that Obama has only pursued ending Don't Ask Don't Tell when it comes to allegations of Bush Admin wrongdoing. The SCOTUS is bigger than all that, and I think we are misreading Kagan every bit as much as Bush and Sunnunu misread Souter- and in this case the result will be the same- we will end up with a justice much more liberal and progressive than we expected.
First, let me point out that this should make the teabaggers shudder. She's going to back Obama's ability to control the Executive Branch-- the FCC, health care regulators, to name two examples of why Obama may want her on the court. Healthcare mandate Unconstitutional? Unlikely with Kagan on the court (if it would ever get that far- which it wouldn't). More likely, Obama's FCC protecting net neutrality: ...only "the President has the ability to effect comprehensive, coherent change in administrative policymaking"
Second, let's start with the basics. There are two areas we know firmly where Kagan stands: she is firmly pro-choice, and firmly in the camp for gay rights (she refused to allow military recruiters on campus at Harvard due to anti-gay discrimination!) Her nomination would not impact the balance of power on pro-choice issues one bit, other than perhaps to (shhhhh!) make the court even MORE LIBERAL in this area. Remember Stevens was firmly for protecting Roe, but was not a champion. Further, its likely Kagan is to the left of Stevens on gay rights issues. I'll take a firmly pro-choice 50 year old to be nominated to the court.
Third, and this is where we are missing the boat...
The most important question for the court in the next several years (and unless you're Nostradamus, you really can't predict further)pertains to one of the very first question asked by Justice Sotomayor:
Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."
Where does Kagan stand on corporate personhood? Because its these cases, including those cases involving the regulation of the finance industry, that will prove pivotal in the coming years: how much more power will corporations be granted. As we saw last year, this court is 5-4 in favor of allowing unfettered campaign spending by corporations.
Read the transcript of Kagan, as Solicitor General, engaging Kenndy and Stevens on the Citizens United case:
GENERAL KAGAN: Mr. Chief Justice and may it please the Court:
I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
Number two -
JUSTICE STEVENS: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.
GENERAL KAGAN: I will repeat what I said,
JUSTICE STEVENS: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.
JUSTICE STEVENS: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.
GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.
JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction,exemption from media, content-based distinction,time-based distinction. We’ve never allowed that.
GENERAL KAGAN: Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it has been 60 years rather than 100 years. But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be illegal. So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940’s, which Congress very swiftly reacted to by passing the Taft-Hartley Act.
Now, the reason that Congress has enacted these special rules — and this is the second point that I wanted to make -
JUSTICE STEVENS: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn’t the Snowe-Jeffords Amendment, which was picked on by Congress itself, an -and which is argued by the NRA, an appropriate answer to this case?
GENERAL KAGAN: That was my third point, Justice Stevens.
In this exchange, I can see that Kagan is an entirely effective replacement for Stevens. And may be able to accomplish something badly needed: bringing Kennedy over to the side of reason on these key corporate cases.
Roberts and Alito's greatest sins are not being anti-choice or even pro-torture. It is being pro-corporate perhaps to a greater degree any justice nominated to the court has in the past 50 years. It appears Kagan may be an effective counterbalance.
UPDATE: Notice in his introductory remarks Obama SPECIFICALLY refers to Citizens United.
I think Kagan has a mission, and Obama has a mission with his appointments... build a 5-4 majority who will slap down corporate power. This takes time. But its possible to appoint perfectly acceptable liberals to the court who would NOT hold these views regarding corporations. I think this is central.
I would also note I would have chosen Ward-Sears or Wood, but Kagan is not bad. We forget that Orrin Hatch recommended Breyer and Ginsburg to Clinton. And... 3-D chess argument...
I have been frustrated by Obama... but damned if he doesn't end up coming through in the end more often than not. I trust Obama a hell of a lot more than Clinton in his liberal credentials, and I guess I'm willing to think that, given her contacts with Chicago (haha now taking the witness stand, Peter Cetera...) School of Law, Obama just may have some inside insight into her real views on things.