Tuesday, May 11, 2010

Elena Kagan: Another Supreme Letdown for Liberals

 On May 10, 2010, U.S. President Barack Obama chose Solicitor General Elena Kagan to fill the vacant Supreme Court seat left by John Paul Stevens. Kagan would be the fourth female justice ever and the third (out of nine) on the current bench. She brings impeccable academic and professional credentials - formerly acting as the first woman dean of Harvard Law School and then White House Counsel to Bill Clinton- however has never actually served as a sitting judge. It is not unprecedented for a Supreme Court Justice to have had no prior experience as a judge although the last instance was almost forty years ago with William Rehnquist's appointment in 1972.

While many view this move as "safe" by President Obama and believe that he chose Kagan because she would have the least Republican opposition, Obama is upholding the proud Democratic tradition of disappointing his activist base. Obama must be a sadist because he always finds himself in unnecessarily tough situations. Since the Republicans would have caused a furor over anyone Obama nominated - unless she had a sweet, folksy disposition - the President should have done his party a favour and picked a judge that could galvanize the leftist base such as Harold Hongju Koh of the State Department or Pamela Karlan of Stanford University. Instead, Obama is being accused of padding the Supreme Court with guaranteed liberal votes while not actually reaping those benefits. Kagan is pragmatic and logical not too different from the man she is picked to replace. In fact, Kagan found herself in opposition of the Obama administration as Solicitor General over the expansion of executive powers particularly concerning national security. Nevertheless, liberal groups are expected to support the nomination if not for the simple fact of adding numbers to the Supreme Court bench in time to push through much of the Democrat's policies.

As such, conservatives are not too concerned because the political balance of the Supreme Court would still tilt right. Many pundits have pointed out that this political imbalance in the judiciary is not just due to the lack of liberal justices but the weakness of their contention to the court's conservative leader Antonin Scalia - a Reagan nominee. In fact, one would have to look way back to 1967 with the nomination of Thurgood Marshall to find the last real liberal judge. In the end, the political makeup of the Supreme Court is partly a reflection of the American landscape and culture. The dearth of truly liberal Supreme Court judges partly coincides with the slow disappearance of liberal judicial activism while the hoard of conservative justices exist in a time when Republicans are passionately fighting half a century of social progress. However the fact cannot be ignored that when Democratic Presidents get the opportunity, they never live up to expectations as opposed to Republican Presidents who seemingly always "get their man". While the conservative selections of Scalia, Anthony Kennedy, Clarence Thomas, John G. Roberts and Samuel Alito were all celebrated by the right the left-wing reception to Clinton's choices of Ruth Bader Ginsburg and Stephen Breyer and Obama's choice of Sonia Sotomayor have been lukewarm. In fact for many years the two justices who were most aligned with the left were Republican selections - David Souter and Stevens. The Democratic nominations since Clinton have all been met with chagrin as the Democratic base felt there were greater champions of their cause out there. Are Republicans simply more talented and ruthless in the confirmation hearings to get their way or are Democrats severely lacking in as Sotomayor might call "cajones".

One feels as if having just conquered health care, facing a volatile immigration issue in Arizona, and fast-approaching midterm elections later this year that he wanted a "gimme" decision that was low maintenance. Nevertheless, had this been George W. Bush's decision, getting his brother Jeb Bush confirmed as a Supreme Court Justice would have been considered a "gimme decision" and low maintenance. What a difference a majority makes.


  1. kagan is pragmatic and an excellent law mind. as a liberal i wouldn't mind her at all :)

  2. Elena Kagan doesn't know shit about anything, she's never been a judge! how the fuck do you become top judge without ever being one? HAH!


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