I’m beginning to get the sense that, had President Obama chosen a different course in life and decided to be a boxer, he would have fought in the style of James Braddock, whose concept of defense was to lead with his chin and get pounded on until the other guy wore himself out. After absorbing a year-long beating during the eventually-successful health care fight, after taking all sorts of absurd punishment during the Sotomayor nomination fight, after approving more offshore oil drilling approximately 17 seconds before the Deepwater Horizon exploded and sank in the Gulf, Obama is once again sticking his chin out with the nomination of Elena Kagan to replace Justice Stevens on the Supreme Court.
Kagan is hardly a radical pick, despite what we will almost certainly be hearing from the usual suspects on the right. She is the second woman Obama has nominated to the high court, a fact that will please many and disturb a few. She has been a trailblazer throughout her career, becoming the first woman to serve both as solicitor general and dean of Harvard Law School. She clerked for Justice Thurgood Marshall in her youth, a fact the right will almost certainly be used to tag her as being too liberal for the court.
But Kagan also seems to have gone out of her way to avoid getting pinned down on many of the signal issues of the day. She is, in fact, something of a mystery. The New York Times on Monday described her this way:
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She was a creature of Manhattan’s liberal, intellectual Upper West Side – a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.
She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.
She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.
Elena Kagan has been all of these things, charting a careful and, some might say, calculated path – never revealing too much of herself, never going too far out on a political limb – that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama’s nominee for the United States Supreme Court.
The lack of hard data on where Kagan stands on any number of judicial questions has been by design. In a February 2009, questionnaire prepared by the Judicial Committee during the nomination process for her position as solicitor general, Kagan was asked where she stands on the constitutionality of the death penalty. She replied:
Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area.
Kagan’s views on a number of hot-button issues are not hard to discern, however. She is a capital-D Democrat and squarely on the side of choice. She could become the most adamantly pro-gay rights justice in history if she wins the seat; while dean of the Harvard Law School, she barred military recruiters from operating on campus because of the anti-gay discrimination at the core of “Don’t Ask, Don’t Tell.” This “transcript” of Kagan debating with Justices Stevens and Kennedy on the power and rights of corporations as pertaining to the controversial “Citizens United” case would seem to make it evident that she stands firmly with the left on the dangers represented by that decision.
Of course, the same people on the right who flipped out over the nomination of a Hispanic woman (which was, despite protests to the contrary, the real reason they detested the Sotomayor pick) are going to flip out again over the nomination of a Jewish woman. Obama could nominate a lily-white Protestant woman; a black Baptist woman; or a tall, blue woman straight out of the cast of “Avatar,” and the same people would grind their teeth no matter what, because of the “woman” part of the equation. They can deny it from the rooftops, but rampant misogyny is still the watchword in those particular circles, and that’s just how it is.
Beyond those people, who would lose it even if Obama nominated Jesus of Nazareth to replace Stevens (simply because Obama was the one who nominated Him), you’d think it would be difficult to gin up a significant amount of angst and outrage over such a deliberately bland nominee, but that in itself is what might lead to trouble. Opponents of the Kagan nomination are going to point to the dearth of scholarly works from Kagan that might tend to illustrate her views, and they will also point to the fact that she has never served on the bench in any capacity beyond clerking. This absence of clarity will make her performance before the Senate Judiciary Committee critical to her chances of navigating the nomination process.
But – and this is a big, fat, hairy “But” – Kagan’s position on the unitary power of the executive branch is where the trouble is going to come from, particularly on the left. Glenn Greenwald of Salon went into deep detail about Kagan’s unacceptability as a nominee due to this specific issue:
I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It’s not hyperbole to say that it spawned a profound Constitutional crisis.
Recognizing the severity of this radicalism, numerous legal academicians used their platforms – and created new ones – to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush’s policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal – Kagan’s not-at-all-progressive Deputy Solicitor General – was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees – in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).
Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It’s possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing – other than when she endorsed the core Bush template during her Solicitor General confirmation hearing. As Adam Liptak put it in 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.” The Boston Globe similarly pointed out that she “has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush’s efforts to combat terrorism.”
Few issues raise more consternation and rage on the left than the constitutional crisis created by the deranged activities of the Bush administration. This isn’t just a problem for the far reaches of American liberalism, but an across-the-board complaint from a majority of the citizenry. Liberals will point to this in disgust and accuse Obama of moving the Supreme Court even further to the right, and will likely serve to further erode the Democratic base’s support for his administration. If she does indeed prove to be a proponent of unfettered presidential power, the unitary executive crisis unleashed by Bush will continue unabated.
Again, a great deal of this will come out in the wash when the confirmation hearings get underway, and her performance and statements during those hearings will play a supreme role in determining where opinions of her will come down. For the time being, however, the nomination of Kagan appears to be another example of the president leading with his chin. This time, however, the lion’s share of punches are going to come from the left side of the ring.