The White House seeks out Kagan defenders

[Jefferson23]

Saturday, Apr 17, 2010

By Glenn Greenwald



(udpated below - Update II)

The Huffington Post's Sam Stein reported yesterday that the White House this week "reached out to progressive allies" and asked them "to dismiss" the column I wrote on Tuesday arguing against the selection of Elena Kagan for the Supreme Court. I have no idea if there is a causal connection, but there quickly emerged three pieces criticizing my argument and offering ringing endorsements of Kagan: this piece at Slate by former Clinton Solicitor General Walter Dellinger; this Huffington Post argument by legal analyst and author Linda Monk; and this cliché-filled, ad hominem, substance-free rant from Akin, Gump partner Tom Goldstein of SCOTUSblog. The first two raise substantive points meriting some responsive attention, though there are also a couple of facts about Goldstein I'm going to highlight.


I'm glad this debate has been triggered. No matter what else happens between now and 2012, Obama's choice to replace John Paul Stevens will be one of the most consequential decisions he makes. The Supreme Court can play a decisive role in virtually every issue I write about here, as well as most other key political questions. There's no reason that those who advocated for Obama's election -- as I did -- should adopt a passive posture of simply waiting quietly for Obama's choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court (much the way conservatives exercised such judgment when Harriet Miers was selected by George Bush).

The most persuasive argument against Kagan is the one I've yet to make. I've spent substantial time learning as much as possible about 7th Circuit Court of Appeals Judge Diane Wood: reading countless cases and articles, interviewing (on the record) former clerks and colleagues, and comparing her jurisprudence to Justice Stevens', and I intend to have that piece posted on Monday. Although Judge Wood is a bit more cautious and moderate a jurist than some of the candidates I'd prefer if it were my choice (such as Stanford Professor Pam Karlan), the available facts establish her as the virtually ideal person to replace Justice Stevens.

In contrast to the complete crapshoot (at best) progressives will be asked to accept if the blank slate known as Elena Kagan is the nominee, Wood has a 15-year judicial record to examine in order to know exactly what kind of Justice she will be, how similar she'd be to Justice Stevens, the brilliance she is uniformly perceived to possess, and especially, how adept she is at crafting opinions so as to attract the support of her right-wing colleagues on the very conservative 7th Circuit court. Indeed, the close, constructive and mutually respectful relationship she has forged with the conservative judges on that court is one of her most distinctive attributes. Given the pure and documented excellence of Judge Wood -- who, by all accounts, was one of Obama's finalists to replace Justice Souter last year -- what could any progressive point to in order to justify Kagan's selection instead?


remainder here: http://www.salon.com/news/opinion/glenn_greenwald/2010/04/17/kagan/index.html

[IndianaGreen]

1. Dick Cheney and John Yoo will vouch for Kagan's neocon bona fides

Just what we needed on the Supreme Court, another Scalia clone!

[no_hypocrisy]

2. I won't defend Elena Kagan.

Where will Don Siegelman get his justice if she is nominated and confirmed as an associate justice on The Supreme Court? She's argued against the Court exonerating him from the trumped up charges that originate from Karl Rove.

http://tpmmuckraker.talkingpointsmemo.com/2009/11/disappointed_siegelman_obama_doj_virtually_the_sam.php#more

See Comment #1
http://www.mainjustice.com/2010/03/15/elena-kagan-the-next-supreme-court-justice/

The Prosecution of Ted Stevens and Don Siegelman
http://www.huffingtonpost.com/rebecca-abrahams/the-prosecution-of-ted-st_b_395771.html

Still skeptical?? Here is Elena Kagan's reply brief. YOU DECIDE.
http://www.scribd.com/doc/23440615/Siegelman-Case-Elena-Kagan-Reply-Brief

[Jefferson23]

3. I agree, and my hope is that the White House will reconsider their choice, if

in fact it is Kagan. I appreciate Greenwald's hard work, and I email his OP's to
my elected reps, and Obama too, on this issue.

Seems like we're always having to fight back.

[elleng]

4. This is good, as such engagement is Stevens' as well:

'how adept she is at crafting opinions so as to attract the support of her right-wing colleagues on the very conservative 7th Circuit court. Indeed, the close, constructive and mutually respectful relationship she has forged with the conservative judges on that court is one of her most distinctive attributes.'

Its been said that Stevens' ability to attract Kennedy in significant matters has been one of his most important contributions.

[yurbud]

5. I think the gay rumor was a way to bait progressives into reflexively defending her

and it won't work.

As a matter of survival, identity politics have to take a backseat to fighting the corporate machine.