Tuesday, May 11, 2010

Elena Kagan: A poor choice, politically speaking

I would have gotten to this earlier, but I was pretty sick yesterday and was not really much up for blogging.

I've read a lot of different takes on the Elena Kagan nomination and I'm not really sure how to feel, aside from mildly annoyed. I mean, I guess Obama has a high opinion of her, and he is obviously in a position to know more about how Kagan thinks than I do. I sure hope he knows a lot that I don't, because I kind of think that this pick is odd from a practical perspective and terrible from a political perspective. There's practically nothing in Kagan's history or work for people to connect with. She's from a well-off family that headed some top-notch legal departments, basically, and seems to have assiduously avoided from saying anything noteworthy about much of anything. She's a completely uninspiring choice. Nobody seems to be really excited about her, aside from some of the dialed-in Beltway types. Kagan is the embodiment of the governing class, and to the extent that her nomination is a statement, I'm not sure it's a statement that coincides with what Obama was preaching in 2008. I'll be watching this process, and I'm inclined to support her, as what details we know seem to paint a picture of someone who is smart and qualified, but there's hardly enough here to pass judgment and unless she answers some basic questions I don't really think she should be a lock for confirmation. I think Obama would have been better off picking an experienced progressive jurist like Diane Wood, or someone with a better narrative and more life experience like Jennifer Granholm*, both of whom are quite a bit less opaque than the current nominee.

On the other hand, I'm also mildly annoyed at some of the more blustery anti-Kagan pushback. There's a real point to be made that Kagan's record on civil liberties is suspect, but to say that she's argued the government's case in cases involving civil liberties is evidence of antagonism to civil liberties is like saying that a lawyer who defends a murderer tacitly supports murder. Kagan is essentially the government's lawyer, of course. All of which is to say nothing, I suppose, except that there's not much to say. Kagan is a cipher seemingly to everyone but Obama. As much as I respect the guy, that's just not enough.

I'm not sure what to think of this situation. I don't really think the Obama Administration has been that strong on civil liberties, and I wish he would expend more political capital on it, but I have to admit that that kind of stuff just doesn't command much popular support at this point in time. I can't really blame Obama for the climate of fear that makes every failed terror attack front-page news for weeks at a time. I'm no apologist--reading Eric Holder's concession to the latest BS from the Republicans about Miranda warnings made me want to pull my hair out, and I think showing more guts on those kinds of issues would go a long way. But it is what it is. In any event, Obama's leadership has been solid and even inspired in most other areas. Therefore, I'm willing to at least hear the case in Kagan's favor, should one be presented, but absent a compelling case I just don't know. At this point, Kagan has a lot of support but little evidence in her favor, and all her supporters' messages seem to be riffs on, "Trust me." My inclination at this point is to trust, but also to verify.

So, I guess I'm basically undecided at this point. Still, when I read stuff like this I get really annoyed:
In his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.

Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle....But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.
I just don't understand how this much political calculation gets such a poor choice from a political perspective. A successful filibuster of a Supreme Court nominee has never happened. It's hardly even been credibly threatened. Why not appoint Diane Wood and see if the GOP decides to give the Democrats a perfect, high-profile case of obstructionism to take to the voters? When you see stuff like this Gallup poll showing Kagan about as well received as Harriet Miers or Sam Alito, one just wonders what the point is to this calculation at all. Would Wood really have been much below that? I doubt it.

* So, Barack Obama clearly wasn't thinking the way I was about this. I still think my arguments about Granholm are solid, and she would undoubtedly have more grassroots support than Kagan will. But I will readily admit that I know nothing about Kagan's jurisprudence, though I appear to not be the only one.

The Man, The Myth, The Bio

East Bay, California, United States
Problem: I have lots of opinions on politics and culture that I need to vent. If I do not do this I will wind up muttering to myself, and that's only like one or two steps away from being a hobo. Solution: I write two blogs. A political blog that has some evident sympathies (pro-Obama, mostly liberal though I dissent on some issues, like guns and trade) and a culture blog that does, well, cultural essays in a more long-form manner. My particular thing is taking overrated things (movies, mostly, but other things too) down a peg and putting underrated things up a peg. I'm sort of the court of last resort, and I tend to focus on more obscure cultural phenomena.