Legal Commentary

What Are Elena Kagan's Values?

By Big Tent Democrat

One of the mistakes, in my view, of critics of President Obama's choice of Elena Kagan for the Supreme Court is their view that Obama is afraid to fight for his values. This gets it wrong imo. Obama has supple values, he is a pol after all. My surmise is that Obama hopes Kagan is like Cass Sunstein (and maybe Kagan has let him think so.) I hope she is not. For once, HOPE is the appropriate word. Glenn Greenwald writes:

The New York Times this morning reports that "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." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things [. . .]

(Emphasis supplied.) I vote for B. But what does this tell us about Elena Kagan? Not much in my view. Indeed, here is the perfect opportunity for the Senate to reseize its constitutional responsibilities of advise and consent, not rubber stamping of a President's choice for the SCOTUS. More so than any recent nominee, no one really knows what Kagan thinks about much of anything. As Glenn notes, the issue of the exercise of the advice and consent Constitutional responsibility of the Senate is one of longstanding for me:

The most important point to note about Kagan now is the one highlighted this weekend by Talk Left's Armando, as first reported by The Los Angeles Times: in 1995, Kagan condemned the Supreme Court confirmation process as "a vapid and hollow charade" and an "embarrassment," arguing that Senators should "insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that's especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything. She ought to be held to her own position and "reveal what kind of Justice she would make" and "disclose her views on important legal issues." I'm certainly willing to listen if she does that and then make a rational assessment of her based on those answers. Anyone wanting to form a rational choice should demand that she do the same.

I bet President Obama probably would learn a lot too.

Speaking for me only

Full post as published by TalkLeft on May 10, 2010 (boomark / email).