Legal Commentary

The First Salvo At Kagan

By Big Tent Democrat

Many legal observers expect the President to nominate Solicitor General Elena Kagan to fill the seat being vacated by retiring Justice John Paul Stevens. As expected, an early salvo has been provided by Glenn Greenwald:

The danger that we won't have such a status-quo-maintaining selection is three-fold: (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of "post-ideological" attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as "liberal" or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times' Peter Baker wrote last month of the candidates he said would be favored by the Left: "insiders doubt Mr. Obama would pick any of them now"); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama's broad claims of executive authority is likely to be great.

I think this is a misreading of Kagan. I will try and offer a cogent rebuttal in the next few days. But in the meantime, Greenwald begins to develop what will be the principal case against Kagan from the Left - her supposed fealty to Executive Branch power. I think this misreads Kagan. I'll try to persuade you tomorrow.

Speaking for me only

Full post as published by TalkLeft on April 09, 2010 (boomark / email).