The Kagan Nomination

One of the measures for sound political decision-making is whether a given decision is being attacked equally from both ideological extremes. The nomination of Elena Kagan to the Supreme Court is, evidently, a sound political decision by the President. Better to say, as sound as can be expected when it comes to Supreme Court nominations.

I was taken aback last night to hear the MSNBC duo of Keith Olbermann and Rachel Maddow comparing Kagan to foiled Bush-nominee Harriet Miers. Ouch! They were trying to make the point that Miers failed the arch-conservatives’ sniff test because she was untested. At least, that was Olbermann and Maddow’s take. It is true conservatives remembered Ronald Reagan’s promises that Sandra Day O’Connor would be pro-life. But, that misses the central point: The conservative objection to Miers was not just that her views were relatively unknown, it was that she lacked the stature which many conservative legal thinkers had attained. That stature was not simply the individual achievement of a Scalia or an Alito, it reflected years of effort and donations to fund conservative legal forums, the Federalist Society, conservative journals and even law schools. Having built that architecture to ensure crackerjack smart and substantive conservative jurists, the leadership of the conservative movement was horrified that President Bush, instead, went the route of nepotism. They brought down the Miers’ nomination.


Despite the pandering to the crazies on the Left that keep MSNBC prime-time in business, there will be no Miers-like objections to Kagan. This appointment is not about nepotism; Kagan is not the Obama family lawyer, she was the Dean of Harvard Law. And if the editors at The Nation howl that Kagan is not liberal enough, that certainly doesn’t hurt Obama and the Democrats going into the midterms. Obama did not appoint the liberal champion, Diane Wood, whose commitment to abortion rights is so extreme, the nomination would have sparked a firestorm. There will be, I am sure, protestations from the crazies on the Right too, but Kagan appears to be eminently qualified by learning, experience and temperament for the post to which she has been nominated. A

In the Post’s profile of Kagan, they noted that at Harvard she tried to make the school more student-friendly, installing a volleyball court, which is always a good idea, and offering free coffee, also a good idea. They also noted that she encouraged students to go into public service by raising the money to provide financial aid to those who went into public service after graduation. This is a great thing. An annual salary in public interest law is less than a year of tuition at Harvard so Kagan’s efforts to pay off the loans incurred for those who serve the public is essential if we want some of the best and the brightest to go into public service. By way of example, at the University of Connecticut Law School, only 2.4 percent of graduates go into public interest law and another 10.3 percent go to work in government agencies. Kagan gets high marks for encouraging her graduates to do so.

As I said above, this appointment is as good as it gets in this administration. I confess that even though I voted for President Obama with enthusiasm, the only hesitation I had was about his power to influence the judiciary. The man who said, in his career-launching speech at the 2004 Democratic National Convention in Boston, that America’s individualism co-exists with another impulse in the national psyche, the idea that "I am my brother’s keeper," that man who is now our president does not see, I fear, how the law and the Constitution must also embrace both impulses, the individualistic and the communal, in our national life.

I am no legal scholar. I do not know how you reconcile the autonomy-loving instincts of liberalism, as articulated most clearly in the Casey v. Planned Parenthood decision, with the "brother’s keeper" instinct of which Obama spoke. I have noted before that liberalism (in the classic, Lockean sense in which all Americans are liberals) still awaits the thinker who can do for liberalism what Aquinas did for Aristotle, create a synthesis between orthodox Christian thought and a philosophy whose roots are not Christian. I leave it for others to determine if, five hundred years into the modern, liberal project, if the lack of an Aquinas means no such synthesis is possible or that God only sends men of such monumental intelligence infrequently.

If Obama had nominated Diane Wood, this would be a difficult week for us pro-life Democrats. Her writings and decisions on abortion are truly indefensible. But, the President did not nominate Wood and while we have no reason to suspect that Kagan will be more or less pro-choice than most liberal jurists, abortion rights have not been central concerns in her professional career to date. As I noted elsewhere yesterday, it will be curious to see if those right-wingers who label Obama "the most pro-abortion president in history" will have the decency to acknowledge that, at least, he did not select the most pro-abortion nominee to the Court.


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Tom Maher
8 years 8 months ago
The country is not well served by appointing Elena Kagan to the Supreme Court. She has no experience as a judge and therefore no record to demonstrate she has the judical tempermemnt to impartially, objectively and fairly decide cases.

Sunce the Supreme Court is a life time appointment, it is important to know in advance that the nominee has demostrated judical temperment. An unrestrained justice, politically active justice is a major problem that would prevent rather thatn foster justice. We need to be very careful not to transformed the Supreme Court into a Supreme Legislature, filled with political activist more concerned with their own political ideas rather than the law.

Why chose a person of unknow judical temperment anb ability when the nation has thousands of capable judges with proven judical temperment and ability?

Kagan has demonstrated she is a political activist. As Dean of Harvard Law School she barred the military from recruiting on campus Harvard law students. But military service is public service. The decision of whether to serve in the the military should have been left to individual law students. But Kagan instead imposed her own view and prevented Harvard law students from even hearing of military legal positions on campus. Thses are subjective, high-handed and authoritarian actions showing her as a partisan political activist.
8 years 8 months ago
What is a ''right winger?''  It is a term thrown around just as liberal and conservatism is.  I consider myself a traditional liberal yet I am also a conservative so what does that make me.  I am certainly not what the term liberal means to Mr. Winters and the current political dialogue.  The terms are often used to bait people into an emotional reaction.  The traditional use of the term ''liberal'' was to describe the concepts of ''freedom'' and ''equality.''  
People use the term ''fascist'' to describe people they do not like and then paint the same people as ''right winger,'' especially if the accusers are on the ''left'' but fascists were hard core socialists which we often ascribe as the ''left.''  I am not sure exactly what ''right winger'' is supposed to connote but I know that Mr. Winters does not mean it to be praise worthy.  On any topic it is easy to dig and find some reprehensible comment or person to make one's point.
The more interesting phenomena is that there will now be six Catholic jurists and three Jewish jurists.  Can you imagine the Founding Fathers dealing with that?  Are the ''right wingers'' on the court, the Catholics or at least five of the six?  And we know which five they are.  Also all are products of Harvard and Yale.
8 years 8 months ago
JR Cosgrove; You got very close to answering your own question. A "right winger' is someone who says a 'fascist' is a left wing socialist.  (:
James Lindsay
8 years 8 months ago
I have not examined the writings of Judge Wood, who is still a sitting jurist. What does she say about abortion? Now I am curious.

As for Kagan, she is a good pick - even if she is an Obama friend. I see no problem with her stand on ROTC, since she did not create that policy - she inherited and then dealt responsibly with changing it after Congress took notice and the courts ruled that what Congress required was not unconstitutional. In other words, she has respect for both liberty and law. This will make her a pretty mainstream justice.

I would, of course, prefer to know about her view on Schecter poultry - although I can't imagine it would be very different from the one held by most judges. We can be reasonably confident that she is no raving origionalist who will attempt to undo what is now settled law on economics and regulation. I would not expect Obama to nominate such a judge and was pleased that, bad publicity to the contrary, the Bush II nominees don't appear to be on the road to overturning the existing body of regulatory law. I suspect there will be a fight when Justice Scalia leaves the bench - since he is the driving force behind applying the Federalist Society program to law. I suspect, however that his seat will be the next vacancy (although Justice Ginsberg may exit first).
8 years 8 months ago
Newsflash to Michael Sean Winters: if you're waiting on the reconciliation of liberalism (Philosophical) to Catholicism/communitarianism, that train left the station some time ago.  Failed project.  Now, on to the vastly more interesting post-modern communitarianism.  
Helena Loflin
8 years 8 months ago
"An unrestrained justice, politically active justice is a major problem that would prevent rather thatn foster justice. We need to be very careful not to transformed the Supreme Court into a Supreme Legislature, filled with political activist more concerned with their own political ideas rather than the law."
The Supreme Court we have right now is dominated by conservative political activists: Roberts, Scalia, Alito, Thomas and Kennedy.
James Lindsay
8 years 8 months ago
Taking a look at some of the coverage of Judge Wood's prior rulings, I find nothing to indicate she is an extremist. Certainly in applying Hobbs Act jurisprudence to clinic vandalism, she is in no way out of the mainstream, even though she was overruled. I would argue that the extant case was not about abortion anyway, but about interpretations of the RICO Act that could have been raised by any case where protesters had gotten out of hand (for example, animal rights protesters or anti-war protesters). To say these cases have anything to do with abortion per se is to indulge in tribalism (meaning the pro-life movement is taking care of their own rather than looking at the merits of the case - ignoring bad actions by extremists in the movement).

On the cases that are really about abortion, her rulings are on the edges of the question on how to interpret state powers to regulate the procedure. If her dissent had been that absolutely no restiction were constitutional - that would be radical.

Her remarks in the Dickenson Law Review are the only ones that might draw serious objection - and even there she is 50% correct. State governments do not have any authority, nor should they, to ban abortion because in order to do so without violating privacy rights the fetus must be found to be a person. Defining who is and who is not a person is clearly a federal power and has been since the ratification of the 14th Amendment. This is clearly also the case regarding partial birth abortion as well - so her decision on the Nebraska Law was not beyond the pale by any means. The pro-life movements obsession with a states rights position actually stops it from progressing to the correct field of battle, which makes it a good electoral issue and an excellent fundraising issue (since as long as the movement is stuck in this blind alley, it will never succeed).

I do disagree with the judge on federal regulation of abortion, however. Abortion is a federal right only so far as the Congress does not grant legal recognition to the child. Constitutionally, it could do so at any stage under its enforcement powers under the 14th Amendment. When they do so is and should be a matter for debate - but the debate must occur in Congress.

Oddly, it seems that President Obama is much more willing for this debate to occur than is the Right to Life movement. I can't say that I don't blame the movement for its reluctance, since avoiding it results in abortions that would not occur otherwise. I can understand their reluctance, however, since there is no way they could ever win a debate on first trimester abortion, given the impact of legal recognition on both the criminal and tort law. You could not simply ban abortion as a medical procedure and fine doctors, which was the case before Roe. If children are objects of law in the first trimester, mothers would be jailed for ordering the procedure. Since the movement knows it can't win that fight, it won't engage in it - especially since a definitive federal law in this area would settle the issue once and for all and end their ability to raise money and turn out Republican voters.
8 years 8 months ago
''A ''right winger' is someone who says a 'fascist' is a left wing socialist. ''
Ah, but Mussolini was a communist who morphed his ideas into fascism and Nazi stands for ''Nationalsozialismus'' or ''National Socialism'' and the party was officially called ''National Socialist German Workers' Party'' and they used to call fellow party members, comrade.  So it must mean that the commenter does not think socialism is left.
James Lindsay
8 years 8 months ago
On reconciling liberalism with Catholicism, the main reason this has not been done is that it is almost impossible to get such a tome published - although they might give E.J. Dionne the necessary advance - although ultimately such a justification would come from someone seeking political office and justifying their actions. This is also a hard choice, since a purely sectarian run for office is not in the cards right now, at least in a diverse nation. Of course, if Benedict XVI comes to an understanding with Constantinople and is successful in the Ordinates project, objections to an effort in the public at large may evaporate.

On the conservatism of the Court, I don't see it. In Gonzales v. Carhart, Roberts, Alito and Kennedy all refused to use the case to overturn Roe (pretty much making fools of those who championed the partial birth abortion law in order to have 5 conservative justices do so). There are currently 7 votes for the status quo and I can't imagine this changing in the foreseeable future.
8 years 8 months ago
"Activism" is in the eye of the beholder, and therefore nearly impossible for either side of this argument to substantiate.  The Left's activism reached well into the 80s, following the Warren court's overturning long-held precedents to create rights and remedies hither before unheard of (i.e. a right of privacy "emanating" from "penumbras").  It is therefore certain that in un-doing some of these "precedents" a conservative majority will appear "activist", albeit for a different reason.  
The problem is with the confirmation process, which should be abandoned.  Both sides extract such nonsensical "promises" that the candidate will respect stare decisis, etc. that are essentially meaningless (the Court routinely overrules precedent).  We can thank the left for this kabuki theatre, beginning with the great champion of women Teddy Kennedy's scurrilous attack on Robert Bork (and before liberals re-tread the tired trollops about Bork, there were justified reasons one could assert against Bork; but those were NOT what Kennedy's were).
Kevin Gumienny
8 years 8 months ago
I'm curious where Winters sees the beginnings of modern liberalism. 500 years ago goes back to the 16th century. Always understood modern liberalism as being rooted in the 18th century.
Besides, if Aristotle had to wait 1,500 years for a Thomas Aquinas, seems like reconciling liberalism and Catholicism has a few more years to go before the clock runs out.
James Lindsay
8 years 8 months ago
The answer for economic liberalism (which is actually more important regarding the question of Supreme Court nominations - given the caseload the Court faces) and Catholicism is much easier. The answer is a string of popes, from Leo XIII (Rerum Novarum) to Benedict XVII (Caritas in Veritate). Of course, one could actually say that economic liberalism - and in some cases outright libertarian socialism - goes back to the time of the Apostles, who shared everything in common. A similar socialism animates the monastic movement to this day and can be traced to the earliest days of the Church.

Indeed, rather than asking about liberalism and Catholicism, the bigger disconnect is between capitalism and the Church - which was only a marriage of convenience in the neo-conservative/anti-communist era. Given the association between the Lockean liberalism discussed and capitalism as personified in Calvinism, I may have to agree with those who say that no linking to liberalism (in the Lockean, rather than the economic sense) is possible.

The only possible link between libertarian ideals of liberalism or libertarianism and Catholicism would be between Aquinian (and older) ideas of free will and their relationship with the organization of the state. If God has granted individuals free will, rather than granting absolute power to the sovereign, then it is not the place of government to violate these unless the governmental action is expressed in a Rousseauian construct of the General Will, which should never be sought since such expressions tend to result in egalitarian terrorism (see Jacobinism and the Khmer Rouge).

The concept of the General Will is still instructive, however, in that the extent to which a majority imposses its will on a minority is the extent to which police powers are necessary in a society. An example of such police state tactics is easily visible in both federal drug policy and in the criminal justice policy in the southern United States generally, both of which are tinged with racism - especially in the area of corrections. The only alternative to such tyranny on both individuals and groups is the kind of liberalism that does not regulate private behavior, but instead provides for assistance when necessary when private behavior becomes personally or communally destructive. Such a corrective ethic is in line with Catholic conceptions of natural law, especially those based on the scriptures on the Law of Love from the Last Discourse (Jn 13:35), the ethic of service in Matthew 25 and especially the ethic of divine humility in Matthew 11: 28-30 and the ethic of forgiveness in Matthew 6 - which would, if practiced, overturn the entire penal code.

Now, that wasn't so hard, was it. Getting it published is hard. Even getting the diarist to acknowledge that what he wants has taken place on his own blog (and that he did not write it) is, of course, next to impossible.
Vince Killoran
8 years 8 months ago
Carl is right, i.e., "The Supreme Court we have right now is dominated by conservative political activists: Roberts, Scalia, Alito, Thomas and Kennedy."
I don't usually clutter up blogs with book recommendations but Thomas Keck's THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM (UChicago, 2004) is a outstanding work on the question of activism.
8 years 8 months ago
The current Democrat/liberal/progressive mantra is that an activist court is one that strikes down the ''will of the people'' in legislation enacted by politicians. This is not what Bork and so called originalists consider ''activist courts''. An activist court is one that either upholds or strikes down legislation even though this is contrary to the original meaning of the Constitution. An activist court is also one sees law in the Constitution when it is obviously silent.

If the SCOTUS strikes down federal campaign finance law because it violates the original intent of the 1st Amendment this is not activist. If the SCOTUS says there is a protection of abortion in the pneumbra of the constitution when it is blatently obvious that the original intent was to neither outlaw or protect abortion then this is activist.
James Lindsay
8 years 8 months ago
Courts do not bring their cases, although clients do occassionaly design them to go to the Court. Indeed, sometimes laws are written to provoke the Court to reconsider an issue (like the Partial Birth Abortion Law).

You could call Roe an activist decision, however one of the threshold question was a jurisdicational call on who gets to decide whether the unborn are to be protected. To the extent the Court said that it could set the rules, it might have gone too far - except for the Civil Rights Act of 1875 which gives the federal courts broad latitude when interpreting the 14th Amendment. Of course, that latitude could be taken back by the Congress - however it cannot be delegated to the states or assumed to be one of their inherent powers.

Given both the history of the enactment of the 14th Amendment (see Garrett Epps, Democracy Reborn) and the plain language of that amendment, the National Right to Life Committee and USCCB theory on this issue is clearly wrong and would take extreme activism to enact.
Beth Cioffoletti
8 years 8 months ago
My sense of Elena Kagan, at this time, is that, like President Obama, she dwells in, and believes in, the "process".  Through engagement and dialogue, the questions and problems to be confronted, are changed, as well as everybody who is involved in the process.  (Kind of like that quantum physics theorem where the observer is not longer external and neutral, but becomes part of the observed reality.)
That's why it is so hard to get a handle on what, exactly, she believes.  She can't be pinned down.
8 years 8 months ago
''I'm curious where Winters sees the beginnings of modern liberalism''
I believe a good argument for the origins of modern liberalism is the French Revolution and the ideas of Rousseau.  Politics essentially became a religion at this point as the movement was atheistic as is much of modern day liberalism.  Without a God to inspire them, utopian ideals or heavens on earth became their obsessions.  There are a few strains of liberalism that are not atheistic of which Mr. Winters and many of the authors here seem to adhere to but in general their running mates are materialists.  Hence the extremely secular nature of the Democrat Party.
8 years 8 months ago
''You could call Roe an activist decision''

It is!

''To the extent the Court said that it could set the rules, it might have gone too far''

Wow, the court gave itself the power to rule! You don't get more activist than that!

Any judge who thinks Roe to be a good decision should not be confirmed! That type of power-hungry judge should be feared!
Tom Maher
8 years 8 months ago
Kagan did indeed by her own decision bar the military from recruiting at the Harward Law School. During her tenure as Dean of Harward Law School a federal law went into effect requiring military recruiting on campus or schools would lose all federal funding. The law was briefly overturned by a lower federal court at which point Kagan barred (again) miliary reqruiting at Harvard. Soon after the law was upheld by the Supreme Court and Kagan was compelled to comply with the law and allow military reqruiting. However Kagan urged all students to boycott the recruiters based on her own opposition to federal law requiring the military to have a "don't ask don't tell" policy. She is indeed a political activist that would stop legitimate and necessary government functions so as to make a point about other laws that she disagrees with. Kagan demonstrated highly subjective, high-handed and authoritarian behavior. She is a partisan political activist.
8 years 8 months ago
What I find disturbing about Kagan is her  support of  "battlefield law" -  the indefinite detention without a trial of suspects in terrorism cases which the Bush administration so took to heart.


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