President Obama has not yet named his nominee to filled John Paul
Stevens' seat on the Supreme Court, but the liberal backlash against one
of his top candidates is starting to build. Solicitor General Elena
Kagan is quickly attracting controversy among liberal pundits for her
conservative stances on issues relating to executive privilege and
national security. Politico's Ben Smith called
Kagan "everybody's frontrunner at
the moment," SCOTUSblog's Tom Goldstein anointed
her the "prohibitive
front-runner," and the New Yorker's Jeffrey Toobin predicted
she would be Obama's choice.
Here's the liberal outcry.
- 'The Case Against Elena Kagan' Salon's
leads the charge, saying Kagan would "move [the court] further to
the Right." He predicts she "could easily end up as the Democrats'
version of the Bush-41-appointed David Souter, i.e., someone
about whom little is known and ends up for decades embracing a judicial
philosophy that is the exact opposite of the one the President's party
supports." He is worried about why Kagan was "remaining utterly silent"
through years of intense Bush-era legal battles over executive power and
national security. He finds "serious red flags" in her record that
should deeply concern liberals, he says.
- Not What We Need
The American Prospect's Scott Lemieux sighs that Kagan,
"while an attractive candidate in some respects, has a record on civil
liberties and executive power that strongly suggests she would not be a
liberal in this mold either. This would be bad for the development of
progressive constitutional values." Instead, "Obama should nominate a
sophisticated and tough-minded progressive along the lines of Stanford
law professor Pamela Karlan, Legal Adviser of the Department of State
Harold Koh, or Judge Diane Wood of the 7th Circuit Court of Appeals."
Concession to GOP The Huffington Post's Sam Stein and Ryan Grim
write that Kagan "is far more conservative than Stevens and could shift
the political dynamic of the high court." They add, "praise from
conservatives may sound damning to those who worry that the court is too
close to corporate interests and too willing to accommodate the radical
expansion of executive power. ... That kind of post-ideological posture
certainly appeals to Obama, who presents himself as someone who wants
to 'move beyond' disputes between competing interests. Obama has
recently moved beyond such disputes by making major concessions to his
opponents, as he recently did with offshore drilling and nuclear
- Right-Wing On National Security The American
Prospect's Adam Serwer warns of Kagan's
"right-wing views on national security," calling her "someone who likely
agrees more with Republicans on such issues when it comes to national
security. The White House should chose a judge who matches Stevens'
intellectual strength, not base their choice on the ever-shifting
standards of an opposition party that likely won't support the eventual
nominee under any circumstances."
- 'Capitulation' The
Guardian's Michael Tomasky sighs, "a
possible Kagan nomination is already being read in part as capitulation
to moderates and a blown chance to get a real fire-breather on the
court. Obama is obviously not going to nominate a fire-breather. That's
not who he is."
- More Liberal Candidates Can Get Confirmed
Mother Jones' Kevin Drum writes, "the conventional wisdom seems to be
slowly congealing that Kagan is
the favorite because she's a bit more centrist than the others and Obama
doesn't really need a big fight in the Senate this summer.
But is that really true? To the extent that he takes politics into
account with his choice, it seems to me that Wood is the best choice."
Drum goes on to argue that fellow short-lister Diane Wood would be just
as confirmable but much more liberal.
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