The Kagan Problem

A.D. Freudenheim, The Editor

There are news articles galore about Supreme Court nominee Elena Kagan, reflecting the simplistic positioning of the left or the right—that she’s too much for one side and not enough for the other. For all the flattering things I have read, and all the quotes from friends of Kagan’s from high school and college praising her brilliance, I remain unconvinced. And I am as concerned with what this nomination says about President Obama as about Kagan herself. There are three parts to this issue.

Part One

As many have noted (e.g., Glenn Greenwald in a good NPR interview) Kagan’s views range from either unknown to poorly developed. She has spent more time serving in managerial and administrative jobs than working to develop a clear legal philosophy. No matter what one’s view of the Supreme Court—desirous of liberal judicial activism, or hoping to make Constitutional originalism the activist perspective—it would seem that a well-developed philosophy is a desirable in any nominee.

Then there’s the bits we do know. For example, Kagan’s decision to bar military recruiters at Harvard was misguided. The military’s “Don’t Ask / Don’t Tell” policy is absurd, but it is unreasonable for an institution to take Federal dollars, including money from the Pentagon, and then decide it doesn’t want Pentagon representatives on campus. That is simple hypocrisy. The recent case Kagan defended before the Supreme Court—regarding the shenanigans over a cross in the Mojave National Preserve—similarly defied common sense. Regardless of one’s view on the legitimacy of the cross itself, to advocate before the Court that the plaintiff has no standing based on Congressional tomfoolery was an affront to justice. Inherited from the Bush administration, Obama’s Solicitor General should have scrapped this case.

Part Two

The Obama administration has not been nearly as ardently liberal as some expected—or wanted. In particular, this president’s approach to civil liberties issues too closely mirrors George W. Bush’s, which is to say they lean towards the authoritarian, with doses of justification coming either from external threats or the simple desire for a “strong executive” branch.

It’s easy enough to contextualize the shift from the Obama campaign to the Obama presidency on some issues: closing Guantanamo was never going to be simple, nor was a pull-out of Afghanistan and Iraq truly imminent. On other fronts, however, there is more than enough disappointment to go around, the latest of which is Attorney General Eric Holder’s floating of a suspension of certain Miranda rights for “terrorist suspects,” and idea Obama seems to support. This may seem irrelevant to Kagan as a Supreme Court nominee, but it’s all of a piece: on any number of fronts, the Obama administration has failed to follow-through on its campaign commitments to restoring civil liberties to pre-Bush-era levels. It makes it difficult to trust that an unknown like Kagan will be the kind of Justice that Obama supporters want.

Part Three

Then there’s the simple and even broader issue of “political capital” and general Democratic wimpyness. For all the threat of a filibuster, the Democrats still hold 59 seats in that Congressional body. That’s more than a simple majority. Just as with health care, however, the political calculus of both Obama and his party seems to be one of safety, not boldness. Kagan—unknown, and in some important ways (for a Justice) unknowable—seems to represent the safe choice, because of the unknowns. It’s a shame.

The Democrats have learned the wrong lessons from the Reagan-era fiasco over the nomination of Robert Bork to the Supreme Court. The focus tends to be on avoiding the Waterloo moment of a nominee withdrawing under fire. What this overlooks is the tremendous value to one’s political base: the Bork nomination may have failed, but it become a rallying point for American conservatives, and in the end was possibly more powerful and valuable even than his appointment to the Court might have been.

One gets the sense, 6 months out from mid-term elections, that Obama and the Democrats don’t have the stomach for a nomination fight. That statement on its own is just pathetic. Obama’s approval ratings (to the extent they matter) are strong. The Senate tilts heavily Democratic. A bolder, more philosophical nominee could almost certainly succeed in passing the Senate on a simple majority vote. And a battle over values—well-argued and cogently thought-through—could have its own value for the American left. If nothing else, it would provide a rallying point for tapping back into the core messages of Obama’s 2008 campaign, and reigniting Democratic and independent voters for the fall elections.

And if those 2008 messages are no longer meaningful or relevant to Obama’s leadership? Then both this administration and the nation have bigger problems and deeper, darker waters ahead.