Legal Commentary

A Progressive Critique Of Obama's Choice Of Kagan

By Big Tent Democrat

This is Monday Morning quarterbacking (not in a bad sense), and we are past this stage of the Kagan Debate now, but Scott Lemieux provides a progressive critique of President Obama's decision to nominate Elena Kagan:

When considering a Supreme Court nominee, a president should be looking for something more than merely "good enough." Kagan may be to the left of John Roberts, but that still leaves a lot of ideological territory open. [. . .]

[. . .] Given the incentives of Supreme Court nominees, it may be futile to hope that Kagan will break with the recent trend of saying nothing of value at the confirmation hearings. And if she fails to take the hearings in a more substantive direction, it will be difficult to avoid the conclusion that while Obama has not necessarily made a bad choice, he has certainly taken an unnecessary risk.

One of the problems I have with this piece is the unstated assumption that President Obama wanted a nominee that is reliably progressive. That may be so, but I am not much into mind reading. I take the pick at face value. Obama chose the type of nominee he wants for the Court.

We can not know for sure now, or even after forthcoming testimony from Kagan at her confirmation hearings, if she will be a strong progressive voice on the Court. Obama may know.

But on the record we have, she was not Obama's most reliably progressive option. It is time to stop the "If Only the Czar Knew" approach to evaluating these decisions. This is who Obama is. Indeed, I argued that this is who Obama was throughout the primaries. He is a Bill Clinton Third Way Democrat.

Speaking for me only

Full post as published by TalkLeft on May 12, 2010 (boomark / email).