Thoughts On Elena Kagan’s Nomination

May 12, 10 Thoughts On Elena Kagan’s Nomination
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I have been catching a lot of flak for my pointed criticism of Mr. Obama’s foreign and domestic agenda.  Many individuals that I trust, admire, and respect have been urging me to be more optimistic.  However, how can you reconcile that optimism with Mr. Obama’s latest nomination to the Supreme Court?  According to most knowledgeable sources on the left and the right, Elena Kagan is an imminently qualified legal scholar who is more than qualified to serve on the Supreme Court.  In the last thirty years, these nominations have become much more politically contentious; and out of that chaos, there has emerged a tenuous balance.  There were four dyed-in-the-wool conservatives, three moderate liberals, and two swing votes.  It is important to note that one of former President George W. Bush nominees, Justice Samuel Alito, has an unapologetically conservative judicial philosophy.  He replaced Justice Sandra Day O’Connor who was a reliable swing vote.

Justice John Paul Stevens, who Elena Kagan was nominated to replace, was one the more liberal justices on the Court and the leader of its “liberal wing”.  Justice Stevens has been a stalwart of progressive and liberal causes since he took the bench in late 1975.  Although liberal Democrats and progressives fully expected President Obama to nominate a person with an open and verifiable liberal judicial philosophy, there were early rumblings that Mr. Obama was leaning toward his Solicitor General, Elena Kagan.  The problems with elevating Ms. Kagan to the highest court in the land are myriad and well documented.  Ms. Kagan has carefully cultivated a career that has allowed her to sit on the sidelines during some of the most contentious legal debates of the last fifteen years.  In addition, when she has taken a stand, especially on executive power, she has issued opinions that should be troubling to progressives.

So, the question remains, why has President Obama nominated a careerist who is so amorphous as to be all things to all people?  Is it another case of Mr. Obama being a pragmatic politician?  Has he placed her ability to be confirmed over the principals that should really govern who ascends to the Court?  Is it time for liberals and progressives to admit that for whatever reason, Mr. Obama no longer shares their governing philosophy, if he ever did?  He talks a wonderful game, shallowly wades into contentious battles, and backs away before absorbing any real damage.  There are quite a few jurists that are as qualified as Ms. Kagan is and have a record of liberal jurisprudence.  Why not pick one of them?  The right is going to attack whomever he picks.  Why not pick someone openly liberal and have a fight based on principal?

Liberals and progressives, do you feel hoodwinked, bamboozled?  If so, when are you going to begin holding Mr. Obama accountable?  Or, are you holding out hope for a glorious second-term?

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