Kagan not an automaton but…UPDATED

A morning email from a good friend:

You predicted Bush would pick Bernard Kerik for Homeland Security (that didn’t work out). You predicted Bush would pick Harriet Miers for the Court (also, ahem, didn’t work out). You predicted Hillary would cry before the New Hampshire primaries in ’08 (things…did not work out for her) and on In the Arena last week, you predicted Obama would choose Kagan. I think your successful predictions are like a kiss-of-death, and Kagan should be worried! Please don’t predict anything for me! Also, you’ve been quiet, what do you think of Kagan, now? You seemed impressed with her.

That particular episode of In the Arena, in which we also discussed the Pope and the scandals within the Catholic church, and the immigration laws in Arizona, was taped weeks ago, directly after the passing of the AZ legislation, and before it was amended to prohibit profiling, thus rendering it (to me) more palatable than at first.

I did predict that Obama would select Kagan as his nominee (discussion begins around 20:11), and I was not terribly troubled by that. Assuming she would be (at the very least) a center-left jurist whose positions would predictably be the opposite of mine (and that this would be true of any Obama nominee) Kagan seemed to me to possess one giant positive that would not be repeated in any other Obama candidate: she is not an automaton.

Elena Kagan is apparently capable of looking at conservative people and conservative ideas and seeing human beings, holding valid positions.

If that sounds like nothing to you, it seems like quite a lot to many on the left who are freaking out about this very quality of Kagan’s. She really is a bit like Harriet Miers, in that sense; the left is as unsure of Kagan’s perfect obedience to “the cause” as was the right of Miers.

As with Miers, I rather like the idea of a judge leaving a few notions up for grabs. And as I argued back then, the president is entitled to his nominee, and the nominee is entitled to her public review before the Judiciary Committee. Because Bush’s base went bananas, Miers never got her review.

Kagan will get hers; this White House has taken the notion of a “political machine” to new levels to insure it. I have little doubt that Kagan will win confirmation (and the support of more than one conservative) when she addresses the panel, because she appears to be gregarious, personable, friendly, thoughtful and–again–capable of engaging with conservatives in a warm and human way – without pre-determined, barely-concealed hostility.

The bigger question is this: is she qualified to sit on the court? Here, I become a bit worried, because this transcript suggests that as Solicitor General, Kagan (who seems not to have put up with unprepared students) has dared to go unprepared before SCOTUS, and–it seems to me, anyway–she has tried to cover her woeful lack of preparation with a cheeky, almost lecturing bravado. Reading the excerpt, Kagan reminds me of a kid who knows she is in the Advanced Placement class by mistake, but is going to try to dazzle her way through it, anyway. I find that a bit worrisome, as I do some of her other analysis. This, for instance troubles me. Then again, I am not a lawyer, so my thoughts there don’t count for much.

All that said, Kagan probably is the best conservatives can hope for, as Glenn Reynolds suggests, from a politically weakened, but still very determined Obama. If the right (or the dissatisfied left) shoots her down, he will undoubtedly come back with one of the ideological automatons who are Legion in the Ivy Leagues.

Last night we saw assurances that “Kagan is straight,” from people who are routinely obsessed with such matters.

Well, as Moe Lane pointed out weeks ago, a part of Obama’s base has a serious issue with gays, and especially with gay marriage, so I’m not surprised that this White House has “bristled” at the questions. Then again, what doesn’t this porpentinesque White House “bristle” about?

I am alternately bored and intrigued with the question. I am bored because really–except for the identity-group-obsessives–who cares? It is inevitable that someday an openly gay person will sit on the court; narratives move forward, not backward, and things must be dealt with as they arise.

But I am intrigued by the notion that Kagan has perhaps had to deal with this question for some decades, if not her whole life. Whether she is gay or not, many people seem to assume it to be so, and if Kagan has spent her life dealing with people making assumptions about her, that means her perspective is one that is calculating and wary, yes, but also probably inclined toward surprise moves and diversionary tactics. I would bet that Elena Kagan does not like anyone assuming that they know what she will think and do on any given issue, and in this world full of rigid political Luthers–all standing where they are and incapable of doing other–I think Kagan will have a flexibility that will probably make her a swing vote, rather than an assured leftist one.

But then again, it is very likely that Justice Ginsberg, who has been ill for a long time, will be retiring on Obama’s watch. Obama will surely replace her with another member of the hard-left, and at that case Kagan’s “swing” vote may be the one to pull the nation hard-to-port. Unless of course, she surprises.

It may be that in nominating Elena Kagan, Obama believes he is playing the same rope-a-dope head-fake that Bush seemed to be aiming for with Harriet Miers. I would call her the replacement for Sandra Day O’Connor. The swing who will give fits to both the left and the right. As such, again, she may be the very best we can ever expect from this president.

UPDATE: Obama was not too hot for Miers’ back in the day.

And, um…no…whatever else Kagan is or is not, she is not exactly up from mainstreet, USA.

More on Kagan:
Byron York: Questions on Kagan’s handing of WH Eco-Terrorist Controversy
Arlen Specter: SCOTUS nominee doesn’t have to answer questions.
If Kagan had dated Spitzer: that would be enough to disqualify her in my book.
Does Kagan need to apologize regarding military on Campus or has the White House already taken care of that issue for her?
David Brooks
Oh, Gore!: She leaves her car running?
The Daily Show: does what it is paid to do
Kagan’s White House created “interview: Riles the press, inasmuch as they can be truly “riled” by this WH.
“Vapid and Hollow”?
Ace O’ Spades: Looking at Free Speech and Kagan
Cult of Celebrity
Track the nomination on Bench Memos
Kim Priestap: Yes, the best we can get from Obama
Little Miss Attila: Also bored by Kagan’s private life

About Elizabeth Scalia
  • http://defend-us-in-battle.blogspot.com Joe

    Maybe it is the rain, but I feel as if people are very short-sighted.

    Catholics and conservatives out there who are calling for Kagan’s head seem to think that if she fails confirmation, that Obama will then be “Scared” and select someone more… more… more what?

    I don’t think that Obama will find someone “better” if she is failed to be confirmed. Something tells me that she won’t I just don’t think the next person will be all that much better. In all honesty… I can’t think or imagine someone like Obama, will pick someone with a proper jurisprudence.

    As I said, maybe it is the rain… I just don’t see a Bork-to-Kennedy situation, should Kagan fail to be confirmed. I don’t see Obama searching for a “moderate” that turns out to be a textualist with a good jurisprudence.

  • http://vita-nostra-in-ecclesia.blogspot.com Bender

    Is she qualified??

    There are a couple of million other lawyers out there who are more qualified than she is. To be sure, she is about as qualified as Barack Obama, but we see what a disaster it is for a done-nothing, empty suit to be president.

    Minimal actual practice of law (I exceed her experience by leaps and bounds!).
    Minimal actual courtroom experience (again, I got her beat by about 15 years more experience).
    Minimal scholarly writing (appallingly minimal for someone in academia).
    Non-existent judicial experience (I am not even aware of her even sitting as a judge in moot court competitions – I again have her beat).
    Minimal to zero real-life Middle America experience outside the east coast, Ivy League, elite bubble.

    On the merits, she is an appallingly bad nominee. In that sense, she just very well may be the best that “conservatives” can hope for because she is highly unlikely to ever be able to persuade even someone like Anthony Kennedy. All she is is a bare vote on the Court.

  • http://jscafenette.com Manny

    “The swing who will give fits to both the left and the right.”

    People keep saying that she’s sympathetic on some issues to the right. I would like to know what evidence there is for it. Just because she hired some conservative teachers at Harvard seems to be the only link to such a claim. Well, that’s not much, and as someone hiring they have an obligation to balance the staff.

    Based on all the lefties that have been nominated by Democratic presidents, I have no reason to believe she is not the same as Ginsberg or Sotomajor or Bryer. My intuition tells me she’s a radical lefty in the Ginsberg mode.

    [Well, this seems to upset the left and please the right. -admin]

  • Myssi

    I haven’t a legal mind and haven’t discussed this nominee with my friends who are lawyers; however, it bothers me that if she is confirmed, there will be NO justices on the court that were not educated at either Harvard or Yale, no Protestants, and yet another Justice from New York City. I think that the diversity of educational and social experience found outside the Northeast corridor might serve our nation’s highest court well, and it bothers me that no President has looked for it recently.
    That said, Kagan may be the best we’re going to get from Obama or she may bow out or self-destruct during the confirmation process, but we do owe her the process at least.
    Just thought, if we must have a law professor, couldn’t the One have chosen Glenn Reynolds?

    [Libertarians scare leftists. They're too "liberal" in the classic sense, and hence unpredictable. :-) -admin]

  • http://www.savkobabe.blogspot.com Gayle Miller

    I don’t think she’s qualified but I also think she’s a done deal in every respect.

    More important than Kagan, it’s time to offer some prayers on behalf of Beau Biden. Age 41 is VERY young to have a stroke, even a mild one. I had my stroke at age 66 which makes more sense since I had had lots of time to indulge in my unhealthy lifestyle. Those cheeseburgers and smoking do catch up with one!

    Anyway, prayers for Beau Biden are in order. His father may be an incompetent boob but the man has already lost too many people in his lifetime and I do not wish Joe Biden ill.

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  • http://namelesscynic.blogspot.com/ Nameless Cynic

    There have been 111 SCOTUS justices. 38 of them had no judicial experience at all.

    William Rehnquist and Earl Warren (two of the last four chief justices) had never been judges. Clarence Thomas had served as a judge for 16 months and John Roberts had served for about two years whenthey were nominated to the Supreme Court.

    Oh, and by the way, maybe you should listen to your own deep thinkers:

    “I thought she would fill some very important gaps in the Supreme Court. Because right now you have people who’ve been federal judges, circuit judges most of their lives, or academicians. And what you see is a lack of grounding in reality and common sense that I think would be very beneficial.” — John Cornyn

    [If you are addressing that to me, I never said a word about her experience or lack thereof. I am not convinced that one need be a judge, or for that matter, even a lawyer, to sit on the Supreme Court. If you are addressing to another commenter, you should perhaps make reference to that person? -admin]

  • http://vita-nostra-in-ecclesia.blogspot.com Bender

    Earl Warren is a MAJOR part of the reason that the Supreme Court lost all credibility as a legal body. Politicians like Warren prove the necessity of having someone with relevant experience. The United States Supreme Court should not be an entry level position.

    And even if Rehnquist were an appropriate pick for associate justice back in the early 70s, after he have extensive litigation experience, in the hyper-politicized post-Roe Court, he too is hardly someone to hold up as a model.

    Thomas and Roberts perhaps did not have a career on the bench, but they did have experience. Just because it would be good to not have someone who has spent their entire life on the bench does not mean that we should adopt the other extreme of appointing people with zero experience.

    You really want Kagan on the Supreme Court? Fine, put her on the court of appeals for a couple of years, and then when Ginsburg leaves, appoint her then. But appoint her now, and idea of a Justice Kagan would be a farce.

    [Of course, "farce" defines most of our governance, politics and media, today, so it's of a piece -admin]

  • Greta

    It will be interesting in light of some Republican Senators who are now seeing that they too may be under fire in their own party, decide to take very vocal stands on some key issues. Orin Hatch will be the key to watch as to his take on standing up to this liberal as the left did to Bush nominees and every other Republican president since Reagan.

    Wonder if she has a history of comment on pubic hairs on coke cans which was used to try to derail Thomas. Now some say we have no right to look at her personal life sexual orientation. The democrats in order to protect the holocaust of abortion have turned the nomination and selection process into a circus. Isn’t it amazing how supporting grave evil causes problems in a continuing fashion. Kind of like supporting the grave evil of homosexual acts as part of your political platform or the depravity of big government solutions to everything.

  • http://westernchauvinist.blogspot.com Western Chauvinist

    I don’t know Bender… Hugh Hewitt is a constitutional law professor and practicing attorney and he thinks she is qualified. As he point out, Solicitors General aren’t a dime a dozen nor are deans of prestigious law schools. He would like her work in the Clinton administration exposed in her hearings (he thinks there must be copious memos with her name on them). While it is true – her experience is not as an appellate judge, that doesn’t mean she isn’t an expert on the law. Regardless, he says he would vote against her because she is not a constructionist.

    I read that transcript from her appearance before the SCOTUS and it made me hopeful. I think she and Sotomayor are cut of the same leftist cloth, but apparently neither are very persuasive. Obama may get what he wants – lefties. But, we may get what we want from his appointments – ineffectiveness.

  • hjp

    I am of the opinion that the Supreme Court is setting itself up for a legal challenge, as to whether or not 1) their opinions are in fact biased due to their common Ivy League education, and 2) they are engaging in discrimination, by limiting the Court to Ivy League Graduates.

    The following applies to Kagan, just as it did to Sotomajor.

    This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

    Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

    Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

    Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

    A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

    Harvard -

    Chief Justice John Roberts
    Anthony Kennedy
    Antonin Scalia
    Stephen Breyer
    Ruth Bader Ginsburg (Harvard, Columbia)

    Yale

    Samuel Alito – Yale JD 1975
    David Souter
    Clarence Thomas – Yale JD 1974
    Sonia Sotomayor – Yale JD 1979

    Northwestern Law School.

    Justice John Paul Stevens

    The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

    Yale – Bush Sr. – 4 years
    Yale Law – Clinton – 8 years
    Yale – Bush, Jr. – 8 Years
    Harvard Law – Obama – 4 – 8 years

    When we consider that our Nation has potentially twenty – eight years of Presidential influece from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation’s policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

  • http://jscafenette.com/ Manny

    “Well, this seems to upset the left and please the right. -admin” (from reply #3)

    It doesn’t sound like much to me. Plus talk is cheap. She could say whatever she wants in front of that panel, and given she had pushed out the Army ROTC off the campus she had to offset that mark somehow. Where are her decisions, her publications? I really don’t see how anyone can claim she’s a closet righty in any way.

  • Myssi

    Libertarians scare leftists. They’re too “liberal” in the classic sense, and hence unpredictable. :-) -admin]

    You’re right about that, of course, and Glenn Reynolds is far too “pro-gun” for Obama to choose him. I’m sure he wouldn’t choose Ann Althouse either. But there are law schools and lawyers who are very experienced at the bar and who lean left who are not from the NE Corridor. It’s that diversity of education (not Harvard or Yale) and upbringing. Nothing against NYC, but Tennessee has a whole different flavor than NYC and so does Wisconsin, Oklahoma or California.
    And, there are lawyers out here in “flyover country” — some of them very left leaning Obama fans — who won’t be considered for the court because they aren’t in the right Alumni Association. That’s very closed minded thinking for the Supreme Court and it bothers me — a lot.

  • http://DearDrFreelance.com Jake P

    HJP (and others), I couldn’t agree more. I am quite sick of seeing representatives of my Ivy League alma mater on the national stage. Inbreeding at its worst, and it is proving damaging to our country’s DNA.

  • http://westernchauvinist.blogspot.com Western Chauvinist

    I must be strange. I’m completely at odds with the “diversity” argument. I find this view plays well in the Left’s narrative that some people are better representatives of certain kinds of wisdom than others. Thus, the “wise Latina” sits on the court. Am I the only one who sees this view of individuals somewhat dehumanizing? When we look at people through the prism of race, class, gender – or in this case – alma mater, aren’t we diminishing them somehow?

    There are two things I want from a Supreme Court justice. Knowledge of the law (especially the supreme law of the land – the Constitution) and a judicial philosophy which starts with the acknowledgement of the wisdom of the Constitutional authors and ends with the belief that that wisdom is strictly discernible in the words on the paper. That’s it. I happen to believe all of Obama’s appointees will fail at the second, but I also believe elections have consequences and , barring the revelation of corruption, his nominees should be seated.

    I also believe the most fervent prayers for those who occupy positions of authority in our government should be for the health, well-being and long lives of the conservatives on the Court. There. I said it. So sue me! Har!

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  • http://namelesscynic.blogspot.com/ Nameless Cynic

    If you are addressing to another commenter, you should perhaps make reference to that person?

    You’re right. I should probably have specified “Bender,” but on that note:

    If you are addressing that to me, I never said a word about her experience or lack thereof.

    Huh. “The bigger question is this: is she qualified to sit on the court? … woeful lack of preparation … reminds me of a kid who knows she is in the Advanced Placement class by mistake, but is going to try to dazzle her way through it, anyway.”

    No, you’re right. You never even touched on it.

    That being said, this next is addressed to Bender (again).

    Earl Warren is a MAJOR part of the reason that the Supreme Court lost all credibility as a legal body. Politicians like Warren prove the necessity of having someone with relevant experience.

    Oh, absolutely right. You’re right on the money. All those pesky Civil Rights decisions? Those should have been left to the various states to decide. Because, you know, lynchings, kids not allowed to go to school, miscegenation , people not allowed to vote? That’s not business for the federal government to deal with, is it?

    And Miranda rights? Right to counsel? Who needs that stuff?

    [Experience and qualifications are two separate things, though, you will agree. The truth is one need not be a judge or even a lawyer, to sit on the SCOTUS. I KNOW she is not experienced, which is why -- as I said -- I did not even touch on it in my post. I am not sure she is qualified. That said, I'm not putting up a strong objection to her. I do think she may yet surprise. -admin]

  • Doc

    Kagan will be easily confirmed and she will be a reliable court Leftist. Obama is capable of appointing nothing else.

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  • freelancer

    I do believe that Kagan is a replacement for Ginsberg, gender considerations, wih the actual Stevens replacement next up. If anything is a certainty with this progressive administration, read socialist, it is that we will get no better than Kagan for any position they control. So, Kagan it might as well be. Harriet Miers was done in by Republicans who were intent on bending George Bush to their will and the leader of that lynch mob was David Frum who had been relieved of his White House job by, Harriet Miers. Frum took his victory to mean he was now leader of the Republican party but soon found his troops were quite limited to his small circle of self serving back slappers. Democrats will accept Kagan, they cannot resist her ivy league resume and leftist convictions. The hearing that Harriet Miers was unfairly denied by her Republican party will be smooth sailing for democrat Kagan. While Republicans in the beltway and media may now say they want other than ivy league credentials for SC appointees, they were disrespectful,intollerant, abusive, and dinigrating of Miss Miers as well as her perfectly valid and acceptable Texas academic credenials. An excuse really. Her background of accomplishments personally and professionaly tower over her politically and career motivated detractors. Her biography is impressive by any measure.

  • http://namelesscynic.blogspot.com/ Nameless Cynic

    freelancer – See, you don’t get to make up stuff about what’s on the public record. Miers wasn’t denied a hearing, she did so badly in the meetings with Senators prior to the hearing that she withdrew her nomination.

    She was ill-prepared and uninformed on the law. She couldn’t explain either her own views or Constitutional principles. White House lawyers described her as less an attorney than a law firm manager and bar association president.

    The Senate Judiciary Committee had to request that Miers re-do some of her answers to the questionnaire they gave her, describing her responses as “inadequate,” “insufficient,” and “insulting” because she failed or refused to answer various questions accurately or in enough detail.

    She lied while trying to play politics: for instance, she told the pro-choice Arlen Specter that she believed in the woman’s right to privacy, but then she later denied it.

    She was neither intelligent, prepared, well-educated, or articulate. She was a strictly political choice on Bush’s part, most likely because she would have been a reliable opponent of abortion.

  • freelancer

    Harriet Miers was denied a fair process by those in the Republican party who wished to select their own candidate regardless of the constitutional right of the President to make that nomination. IOW, those who most vociferously went after Miers had their own political agenda. Whether Miers would have survived the process we will never know because she did withdraw herself when the mean spirited, nasty fury directed at her became disruptive for the administration and biased her nomination. That was the whole point, was it not? Coercion so forceful as to make a situation untenable strikes me as a denial of fair process. This point about not being denied is dishonest and has been used as a copout for the bad behavior of those opposing Miers. It hangs by a thread where truth and responsibility for ones actions is concerned. Everything that you post as being fact about her answers etc. comes from whom? Sources favorable to her opposition? And were they even verifiable? I read all of those negatives printed at the time and concluded that if Miers was so unqualified for a SC position, why not let her nomination process finish its course? She would survive or not. If her opponents had been decent in their opposition, taken a higher road of honest disagreement, the outcome would have been acceptable to fair minded people.
    Your last paragraph is exactly the biased basis on which Harriet Miers was judged by those who sought to have their own choice for SC nominated. I have always wished to see a side by side comparison of Harriet Miers’ life with any one of her presumed intelligent, prepared, well educted, articulate, critics such as yourself. Her bio is not hard to find. Quite the opposite of the person you have described.


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