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Obama’s Natural Choice of Kagan

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Glenn Greenwald
Campaign For Liberty
May 13, 2010

It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals — as is reflected by its actions and policies — and this is just one more to add to the pile. The fact that she’ll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.

The New York Times this morning reports that “Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.” That’s consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

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Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her). As Kevin Drum writes:

[R]ight now Obama has the biggest Democratic majority in the Senate he’s ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? . . . . When Obama compromises on something like healthcare reform, that’s one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn’t have to do this. Unfortunately, the most likely answer is: he does it because he wants to.

It’s even less surprising that Obama would not want to choose someone like Diane Wood. If you were Barack Obama, would you want someone on the Supreme Court who has bravely insisted on the need for Constitutional limits on executive authority, resolutely condemned the use of Terrorism fear-mongering for greater government power, explicitly argued against military commissions and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution on a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular? Of course you wouldn’t. Why would you want someone on the Court who has expressed serious Constitutional and legal doubts about your core policies? Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists — and has seized the power to assassinate American citizens with no due process — wants someone like Diane Wood on the Supreme Court?

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This article was posted: Thursday, May 13, 2010 at 4:32 am





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