Legal Commentary

Who Should The President Pick For The Supreme Court?

By Big Tent Democrat

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein. - BTD

Glenn Greenwald wrote:

I'm glad this debate [over Elena Kagan] 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. [. . .] 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.

(Emphasis supplied.) I completely agree. Indeed, I agree with this about every issue. It is a longstanding argument of mine that progressives should decouple their advocacy from Obama's actions. When they agree, strongly support. When they disagree, strongly criticize. That said, I think it is important to be accurate in your criticisms. I've taken issue with Glenn's interpretations on Kagan. But I also think there is an implicit assumption in Glenn's approach that is unrealistic - to wit, that Obama wants a progressive on the Supreme Court. I see no evidence to support such an implicit assumption. More . . .

As a Centrist, I am confident that Barack Obama's views on who should be on the Court are much more in tune with my views than they are with progressives like Glenn. And guess what? President Obama makes the pick.

Interestingly enough, I want a Supreme Court pick who is likely to the Left of me. This is because the Court has turned decidedly to the Right of me and a leftward tug is necessary to get the Court to the place where I would want it. Thus, while it is possible the Elena Kagan may hold my view exactly, I still would prefer a Pam Karlan or a Diane Wood to Kagan. But I am fairly certain Obama does not agree with me. For a variety of reasons, it appears that Obama wants Elena Kagan. And the question for progressives will be should they oppose Kagan? In my view, they should not. Glenn writes:

It's very understandable why a President would want someone like [Kagan] on the Court during his time in office, but that's a far cry from making a case as to why progressives should consider her an acceptable choice to remain on the Court for what likely will be decades.

(Emphasis supplied.) Here is where I think Glenn makes his mistake. There is a difference between what you "want" and what you find "acceptable."

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein.

I hope that explains my difference in approach from Greenwald on this issue.

Speaking for me only

Full post as published by TalkLeft on April 19, 2010 (boomark / email).