Elena Kagan Will Be The Most Unqualified Justice In History

NBC News is reporting Elena Kagan is Barack Obama’s nominee to replace the liberal lion, Justice John Paul Stevens. Kagan is a remarkably poor choice.The stunning lack of curiosity and involvement in the important legal issues of her age, not to mention the law itself, and remarkable absence of compelling written work and record on the part of Elena Kagan has been previously covered in detail by Glenn Greenwald.

I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the “talking points” memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed “Elena Kagan’s complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States”, take a bow, you are correct.

It is simply mind boggling Barack Obama and his coterie of supposedly enlightened, informed and experienced advisors would contemplate, much less fight tooth and nail for, an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan. They may be harsh words, but they are the absolute truth.

One of the most laughable memes floated by Kagan’s inner circle of friends and sycophants is that she is some sort of wondrous uniter who could single handedly suave Anthony Kennedy to her side like some kind of SCOTUS Svengali. First off, this is the biggest pile of bull manure I have ever experienced; not to mention Kennedy is not so young anymore and may not be around so long. Oh, also, there is less than zero evidence the wet behind the ears rookie on the Supreme bench ever does squat along the lines people are suggesting as far as “persuasion” they glibly think Kagan can pull off.

The narrative being pitched about Kagan is the most contrived I have ever heard on a Supreme Court nominee. She has little record of legal accomplishment in any area actually in the active legal profession (although she apparently is very good at schmoozing monied corporations and benefactors of the Ivy League elite). None. She had never even set foot into a courtroom on behalf of a client, much less as a judge on a case in controversy, prior to being named Solicitor General. Her resume of written work is about the equivalent of an aggressive law school student on the top of their school’s law review; maybe less.

Kagan’s record as Solicitor General is shaky, at best; she wrote a weak amicus brief in Mohawk Industries, was unfocused on her oral argument of Citizens United, stepped in deep manure during the oral argument in Holder v. HLP when she said the material support criminal charge should be applied to attorneys representing disadvantaged clients, and no less than the Supreme Court themselves, in an 8-1 decision in US v. Stevens, basically declared her briefing and argument in said case to be laughably ill conceived, wrongheaded and misguided. Kagan herself admits she is so inexperienced she is like a deer in headlights before the Supreme Court. This is the woman who is going to be the great liberal persuader? Please; what a patently absurd contention.

Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas. Don’t believe me? Take a look at Miers’ curriculum vitae and slate of authored works; then think about the emptiness of Kagan’s written work and nature of her service. Both are clearly accomplished women, but it is hard to see how Kagan is superior to Miers, and Miers was flamed universally across the political spectrum as being an absurd nominee. How can Elena Kagan now be seen as superior?

On another front, what happened to the famous Obama demand for a nominee with “empathy” and a connection to the experiences and plight of the common American? Elena Kagan is a daughter of privilege from Manhattan who has spent her career in the rarified air of the cloistered elite, never even deigning to represent or work with the common citizen. Where did Kagan acquire her capacity for “empathy”? The University of Chicago faculty lounge? Perhaps teas and galas for the individual and corporate monied benefactors of Harvard? What happened to this criteria we have relentlessly been told was foremost in the mind of President Obama?

In the space of 48 hours, we have now been presented with a Democratic Administration coming out in favor of perverting and undermining Miranda, siding with the Federalist Society wet dream of breaking up the 9th Circuit and now the appointment of a blank slate unqualified Supreme Court nominee whose main credentials are that she has worked with Barack Obama and is in favor of unitary executive powers. To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young decade.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

220 replies
  1. qweryous says:

    Joshua Claus’s name is secret.

    Elana Kagan is qualified to be nominated to SCOTUS.

    The conservative justices need a ‘leader’ to help ‘guide them down the path’or some such verbal construction that explains why Kagan will fix what ails the court.

    Three big stinkers in the room.

    I’d recommend that you might add “if approved” to the title; unfortunately
    since there is no question as to this- no need for the addition.

    P.S. too bad you had troubles with this post of all posts.

  2. Mary says:

    Computer issues or I’d say more, but since you’ve already said it all that’s not such a bad thing I guess.

    Great job – thanks for putting this up. That “persuader” thing worked well for her in Citizen’s United, didn’t it? And God forbid that her Holder v. HLP case is the one where she demonstrates persuasive abilities. *sigh*

  3. DWBartoo says:

    Thank you, bmaz!

    Most excellent!

    And appalling.

    What, precisely, is Elena Kagan “accomplished” at?

    The euphemism and brown-nosed suck-up?

    She is a pragmatist’s pragmatist for whom expediency reigns.

    She is so shallow as to be one-dimensional.

    A perfect foil to the “multi-dimensional” Obama.

    And a perfect tool for Executive and Corporate Supremacy.

    She is, absolutely, the best and most-perfect choice for what Obama-rahma have in mind for her (and for the rest of “us”).

    A sad and pathetic thing, this Obama Administration.

    The question is this: How damaging and destructive will this Administration be … as regards the rule of law – and one or two other, little things …?


  4. Andersonblogs says:

    Sorry, but there’s no particular reason that Kagan have previously been a judge. Hugo Black’s only “judicial experience” was on a police court, for about a year.

    I do wish that we had one or more justices with experience as trial-court judges; a pick straight from district court to SCOTUS would be good. But whatever Kagan’s flaws — which, face it, are Obama’s flaws — the lack of judicial experience is not terribly important for appellate judging, particularly at the SCOTUS level.

    • bmaz says:

      It is not just a lack of judicial experience if you read the post, it is a complete lack of ANY experience in the legal system. And, no, there has never been a Justice even close to such a lack of involvement in the legal system. Never. Not one.

    • DWBartoo says:

      You are correct as to the correlation of “flaws”, but there is too much unknown (and deliberately unknowable) about Kagan.

      She may be a good thing for Obama’s agenda.

      But her very “thinness’, as an attorney, DOES matter, Andersonblogs.

      It is wise not to buy pigs in pokes.

      Wisdom, clearly, has fled this nation.

      May it find its way home, soon?


    • papau says:

      I agree – she believes in the imperial presidency in the same way Obama does – other than that she is qualified.

      She is much more qualified than Thomas and his non-enforcement EEOC career that got him his one year of service on the D.C. Circuit Court of Appeals before nomination.

  5. phred says:

    whose main credentials are that she has worked with Barack Obama and is in favor of unitary executive powers

    (My bold) Great post bmaz, but I have a quibble with all this “cipher/blank-slate” rubbish (no offense to you or Jim intended). We know exactly what Elena is being appointed to do… to cover Obama’s ass on the SC when cases come up that might challenge the King Unitary Executive. There is nothing mysterious at all about what is going on here. Obama intends to continue breaking the law and defying the Constitution. Elena is supposed to keep that program right on track. Hail Caesar Obama!

    • bmaz says:

      Having led the office, Solicitor General, in charge of appellate evaluations for the DOJ, she theoretically should have to disqualify/recuse herself on most of such issues that will come in front of the Supreme Court for at least the next couple of years.

        • DWBartoo says:

          A toolbox is one thing, BT, but what happens to tools that are left in the reign?


          • BoxTurtle says:

            In the case of the supreme court, they continue to screw us over, hammer the consitution, and generally throw a wrench into justice.

            Boxturtle (Ref: Thomas, Clarence)

      • phred says:

        Even if that happens, it still shifts the balance of power on the court and does not give one hope that a majority will put an end to unitary overreach.

        I remain convinced that this pick is intended to sweep away the last vestige of opposition to the restoration of the monarchy begun under Bush and continued with a vengeance by Obama.

        • DWBartoo says:

          Agree completely, phred.


          Three hundred, plus, years … down the drain.

          I wonder if the Brits will laugh at us … or be envious?


        • Mason says:

          I remain convinced that this pick is intended to sweep away the last vestige of opposition to the restoration of the monarchy begun under Bush and continued with a vengeance by Obama.

          I agree and especially like your selection of the word “vengeance” because I think Obama intensely despises liberals, progressives, environmentalists, and populists.

          I believe he worships power and wealth only. He hates to be criticized by intelligent people and will get even. Duly indoctrinated in elitism at Harvard and free market economics and neoconservatism at the University of Chicago, he believes that the ends justify the means and appreciates fully the necessity for authoritarian government to suppress opposition and dissent in order to impose and defend free market economics. Willing to be ruthless as needed and lie to get what he wants, he’s putting the finishing touches on Reagan’s revolution and he can barely contain his glee at enriching himself by promoting legislation that benefits corporations by screwing people in the name of reform.

          He’s not a nice person, that’s for sure.

      • mattcarmody says:

        And maybe that’s the point. We will continue to have the trappings of some sort of representative democracy here but they are like a Potemkin village.

        Obama is doing what he was chosen to do. He isn’t upsetting the apple cart by allowing investigations into the crimes of the previous administration and he’s making appointments to court that will haunt us for a long, long time. He’s a place keeper, there to make sure no radical (in a good way) decisions are made until the GOP can find someone who won’t be too fractious and will be able to fool the people into believing that, yes, a majority of people voting or at least voting in states with the requisite electoral votes, actually voted for another Republican after the disastrous Cheney years.

        If Obama is able to cripple Social Security and put it irreversibly on the path to being dissolved for future generations by the time the 2012 elections come then he is done. He will have completed his tasks and the “election” in 2012 will go to whomever they’re prepping for it right now. It won’t be Sister Sarah because there’s wayyy too much money to be made doing what she’s doing.

        Sorry, but we’re done.

        • DWBartoo says:

          Good morning, matt:

          “They” rode in on democratic “trappings”, which confused the people, and then “they” proceeded to destroy everything and steal everything that wasn’t welded to the floor.


      • oldoilfieldhand says:

        Unless she uses the Scalia method of addressing an issue of conflict of interest, just ignore it…

        Thank you for an excellent post.

      • phred says:

        Hiya DW : ) Sorry for being so scarce. Work has been keeping me off-line for the most part, but there have been other factors, too. The saddest one of which was the recent death of my father. He was a wonderful man and I will miss him dearly. I once heard a particularly good sermon on the subject of death where the minister pointed out that without death there could be no life. Still, one can’t help wanting to keep those they love with them forever : )

        • DWBartoo says:

          I am so sorry to hear of your father’s death, phred, he sounds like mine.

          I still have conversations with him, in my dreams, and he is always just as wise and loving as ever he was.

          I knew you were busy, but I had a feeling …


        • Twain says:

          I’m so sorry about your father but you won’t lose him inside. My father died many many years ago and I still can hear his voice, see his smile, and always feel that he is with me. I know that you will have that, too, and it will make you feel better.

        • bgrothus says:

          Sincere condolences for your loss, phred.

          May I say that I agree with the person who made the remarks about death. As one who has had considerable experience from a young age in this area, I learned right off that without death we would really have no reason to examine/re-examine our lives. It provides a unique opportunity to commit/re-commit to being a better person, to make our mark.

          I am sure without the certainty of death, this would not happen.

          Again, my condolences.

  6. BoxTurtle says:

    I didn’t think it was possible that someone would be nominated that is less qualified Thomas.

    The trend now is to find someone with almost no record for these appointments. No record, easy to defend.

    And you know those idiot GOPers will attack her based on her sexuality rather than her qualifications.

    I mentioned to a lawyer friend that Kagan was going to the supreme court, he responded “Whom will she be clerking for?”.

    Boxturtle (Perhaps she’ll suprise us. Perhaps the sphinx will turn a handspring)

    • DWBartoo says:

      Perhaps the Sun will rise in the West?

      Let us be hopeful.

      Or perhaps not.

      ;~DW (When are ya gonna publish yer collected parenthetical asides, BT?)

  7. temptingfate says:

    This is why the Ds should have let Meirs take a seat, so that Kagen would look qualified in comparison. Of course Roberts and Alito will keep her looking like a liberal in that particular comparison so that’s a win. Nice to know that the SCOTUS is an OJT opportunity.

  8. El Duderino says:

    Glenn Greenwald took one of Kagan’s supporters to the cleaners on Democracy NOW! this morning.


    I do agree with Greenwald that the time for Democrats to fight vigorously against Kagan’s nomination was before she was officially named, but that does not absolve what passes for the American left from fighting the Democrat Party tooth and nail on this. (Yes, there is a distinction.) I suggest what organizations exist in opposition step up efforts to sway senators to vote against Kagan’s confirmation. November is getting closer by the day, and we need to make sure that Democrats and Republicans alike learn before then to take for granted that they will lose their positions in the halls of power by defying the Constitution and the will of the people.

    • DWBartoo says:

      “Democrats” have no interest in “fighting” Kagan’s nomination, they are for it.

      “Progressives”, on the other foot, should put both on the ground, long ago, and stand, firmly, AGAINST the further deliberate destruction of the rule of law, and all those “tools” who are being used to assail such rule of law.

      I guess “progressives” are either too polite for their own good or too damned slow on the uptake.

      But, since this is the ONLY time progressives haven’t paid attention, we’ll let it slide.

      Of course, Obama, really cares about what progressives think, so they’ve only themselves to blame.

      (The preceding snark was for entertainment porpoises only, but I do wish they’d stop laughing and remember the oil spill.)


    • DWBartoo says:

      I say, Gitchee, that little ditty is very … um catchy.

      “Fresh, hot hell, every single day …”

      Ah, well, I don’t wish to drone on …



      • Gitcheegumee says:

        Interesting choice of words,DW.

        Drone(s) and hell…..

        Alas, perhaps Ms. Kagan,with all due respect, should be referred to as INjustice Kagan?

            • DWBartoo says:

              Or all the Goldman Sachsers finding their way to the White House.

              Its the homing instinct.

              Once upon a time, there were two little skunks, named In and Out, playing hide and seek. An observer noted that one of the skunks ALWAYS found the other, while the other did not fare so well. So the observer asked the successful little skunk how he did it. And Out answered, “In stinked!”


                • DWBartoo says:


                  You’d think I’d be used to this crap by now, since Bush v. Gore, but it is still disgusting, but moving toward deliberately appalling.

                  How are you this beautiful morning, Twain?

                  One notes that the birds still sing and brooks still babble(s)…


              • Gitcheegumee says:

                DW, you are a gift and a joy.

                Considering the heavy heart with which I attempt to assess all the perfidies of our present administration-your wit(and wisdom) is wonderful leaven,indeed.No doubt others feel the same.

                Thank you.

                • DWBartoo says:

                  It is shear perversity, Gitchee, but I am honored that you find it to be of some small use.

                  My soul is crying, and my heart is breaking down, a bit, but my perversity says, “Fuck them and the horses they rode in on!”


  9. jayt says:

    It is simply mind boggling Barack Obama and his coterie of supposedly enlightened, informed and experienced advisors would contemplate, much less fight tooth and nail for, an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan.

    not really.

    The Obama administration has been entirely consistent with their lack of stomach for a fight of any kind.

    If I recall correctly, Kagan got a standing ovation from an address to the freaking Federalist Society. What’s not for the R’s to love about her?

    for the O Crew, no muss, no fuss, slide it through. Time to actually hope the r’s continue their pig-ignorant opposition to everything Obama proposes, because this time, they’ll be inadvertently correct, and I’ll be on their side.

  10. greenwarrior says:

    Went to sleep to Kagan will be nominated, woke up to Miranda unnecessary and Texas one step away from accepting low level nuclear waste from 36 states. Bad news has been accelerating lately.

    I’m for joining with the far right to obstruct this candidate. Anyone else need their ability to be tolerant stretched?

  11. Cynthia says:

    It’s no secret that Goldman owns Congress and the White House, but now it looks like Goldman may soon be owning a piece of the Supreme Court, too:


    It’s also no secret that Elena Kagan wants to put a bullet through the head of our civil liberties, so no civil libertarian — right, left or center — should want her on the Supreme Court. Not only does she want to turn our country into an authoritarian police state, she also wants to keep our country in a never-ending war against the Muslim World. Read Glenn Greenwald and you’ll know what I’m talking about:



    In fact, Kagan is such an enemy to our civil liberties and such a friend to our warmongering neocons that she’s a fascist fantasy come true. Even though most right-wing fascists tend to be staunch opponents of gay and reproductive rights, most of them will be willing to overlook the fact that Kagan is a pro-choice, closet lesbian and thus won’t object to her appointment to the Supreme Court. Kagan will also be a fantasy come true for Obama in that she’ll support him in his endeavor to keep all of his ill-gotten, anti-American, unconstitutional powers that he acquired from Bush intact, enabling him to get away with being just as big of a fascist as Bush was!

    From what I’ve read about Elena Kagan, she can be best described as Joe Lieberman in drag. That’s not a pretty sight in more ways than one.

  12. bgrothus says:

    Perhaps some here would like to read the various writers at Scotusblog regarding recusal and other issues, including unitary exec and etc.

    It seems to be a wide look at her history, publications and etc.

  13. greenwarrior says:


    my father died 9 years ago and was also a wonderful man. sometimes i still miss him terribly. and the good part is that when i think of him it makes me feel good inside.

    • phred says:

      Thanks : ) I’ll get there… And even now thinking of my folks (both are gone now) makes me smile, for now there just tend to be tears to go along with it ; )

      • mattcarmody says:

        Sorry about your dad, phred. I lost my parents years ago (1975, 1980). Glad they didn’t see what happened to this country since then.

  14. marsdragon says:

    “To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young decade.”


    To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young CENTURY. Since 2000, we have seen nothing but a steady erosion of everything that we *thought* made America worth it. By the time Obama leaves office, which may very well be 2016, we will be at the same point in the 21st century that America was at in the 20th century – lets review:

    1916 – the creation of the Federal Reserve in 1913 already saw us 3 years into the pillaging of American economic stability for the next century; WWI was already into its 2nd year, with America entering the fray. The roaring 20’s had not happened yet, but were well on their way, with the Gilded Age coming to its fruition. Although TR had bustd the trusts by around this time, that was going to be it for his legacy (aside from the ongoing national parks ideal). I truly think that by the end of 1920, most of America’s *destiny* for the rest of the century had been charted and preset. Not without variability, but I think that thos first two decades of a century are ver important in the psyche of a nation and the world community. The stage is set. Decisions now will have much farther reaching implications than we realize at the time. The rest of the 20th century was a mop up of the messes created in the first 2 decades. WWII could have been avoided altogether if Germany had been treated differently after Versailles (Hitler never would have ascended to power if the Allies had not wilfully ground the German people into the economic dust), the middle east was carved up by Britsh empire very heartily in the aftermath of the fall of the Ottoman empire at the close of WWI, and the economic malaise of the US was directly a consequence of wilful ignorance and recklessness on Wall STreet and in Washington from the 1880s through the 1920s. We had to get to 1945 just to clean up most of the mess, and by then, the new messes required Bretton Woods and a new finacial architecture that only ensconced the existing problems into permananet status (the IMF, International Bank of Settlements, the World Bank, the FED, etc).

    By the time OBama is done, America will be beyond the oligarchic pale. I always wondered what people might have lived like in different types of regimes. We now get to see what economic fascism really feels like. And that is my final point. All that mess from the last century, fighting aganist FAscism and Communism, etc for the sake of “Freedom” and “Democracy” now turns out to have been a century-long hoax.

    America never fought for those things. It didn’t spread democracy. It fought to open up markets and import dirt-cheap labor so that a few corporatists and indutry titans could make more money on the backs on downtrodden humanity.

    Now that they have done this to most of the world, they turn their ravenous maws upon their own fellow AMericans in a way unprecedented. America has served its role as chief tool. Now, its our turn to be the prey.

    • DWBartoo says:

      “Turn-about” is a concept foreign to American sensibilities …

      That is about to change. Big time, marsdragon.


  15. lefttown says:

    I wrote my Senator this morning. I told him that, for the sake of our country, I hope Democratic Senators find the courage to oppose her nomination. And some other choice thoughts. It might not do much good, but it’s better than nothing.

  16. Hugh says:

    What we need to keep in mind with the Kagan nomination is that this is not a fluke. Yes, she is a dreadful choice, for us, for progressivism, for jurisprudence in this country, but she is a great, and completely consistent, choice of this President and this Administration. She is the complete insider Establishment team player. She will support the corps and the unconstitutional imperial Presidency our elites have constructed.

    What progressives should have learned by now is that Obama and Rahm mean what they are doing. There are no mistakes or exceptions. Obama ran and won on a platform of progressive change. He has totally betrayed that. In fact, it is clear he always intended to, that change was nothing more than the convenient lie that would get him elected.

    I will say it yet again but if you look at Obama as the Blue Dog status quo corporatist he really is, every event in his Presidency comes into sharp focus. It is only when all these other glosses, like he is a stealth progressive playing 11-dimensional chess or that he is still a Democrat so still has some of the party’s core principles to heart or that he is a centrist or cautious…. it is only then that these continued assaults on both progressive and populist values become hard to explain or look like veers to the right. They are not. This is the real, unvarnished Obama we are seeing, the bullshitter and corporate suckup in Chief.

    • gundersonrogers says:

      “… if you look at Obama as the Blue Dog status quo corporatist he really is, every event in his Presidency comes into sharp focus.”

      Or, we could step back and take a longer view, and see the greater context as Capitalism vs. democracy. This too presents a sharp focus to Obama’s presidency, foreign and domestic.

  17. cbl2 says:

    a little irony, Credo Action, who had a great deal to do with underwriting Greenwald back in How Would A Patriot Act ? days, is leading the FB charge to confirm Kagan – oy

  18. fatster says:

    Your article was certainly worth the wait, bmaz, and your persistence in getting it posted is laudable. But that last paragraph–well, it just knocked my socks off.

  19. Watt4Bob says:

    I guess “progressives” are either too polite for their own good or too damned slow on the uptake.

    Add comfortable to that description.

    Effective progressive action will probably arise from the ranks of the homeless, if it’s ever going to arise at all.

    Sad to think that things have to get more miserable before we get on our feet, but it looks like that’s what it will take.

  20. spanishinquisition says:

    I’ve been comparing the bios of Kagan and Miers on Wikipedia – Miers looks far more qualified than Kagan! Yet the Republicans at least didn’t just swallow whatever Bush gave them and instead rejected Miers. It would be a real shame if Obama and the Congressional Democrats are worse than Bush and the Congressional Republicans, but I can’t say I would be surprised if it turns out the Democrats are even more sycophantic.

  21. earlofhuntingdon says:

    When talking about nominees for the Supreme Court, there are several attributes that comprise the minimum, the ante, the basic price of being a credible candidate and a minimally competent Justice:

    1. A superlative academic pedigree;
    2. exceptional leadership skills;
    3. deep and well-documented professional experience; and
    4. the ability to reflect the highest priorities and aspirations of the nominating president.

    Ms. Kagan earns an A, a C, a D, and an A++. With those grades, she would have been lucky to get into City College, let alone Harvard.

    Make no mistake, Ms. Kagan is no compromise. She represents exactly the pedigree and style of this conservative, wishy washy, grade scorer. Ms. Kagan is likely to pose no opposition to the strong conservative block on the Roberts Court. On many issues, she will actively support it. For the next three decades.

    When the “liberal” veal pen asks, “What’s for dinner?”, and hears the reply, “Picatta or Scallopini?”, expect it to ask for whichever the chef most prefers.

    • fatster says:

      What keeps bugging me is how anyone could clerk for Thurgood Marshall and apparently learn so little.

      • mattcarmody says:

        Rehnquist clerked for Robert Jackson and look how he turned out. A giant and a gnat.

  22. Andersonblogs says:

    Over at James Joyner’s blog, some other comparisons:

    William Rehnquist didn’t have prior judicial experience when Nixon nominated him in 1971, and he’s not alone. Earl Warren didn’t, Byron White didn’t, and while Sandra Day O’Connor did serve as a trial court and appellate court judge in Arizona, her primary experience prior to her nomination was in the Arizona Legislature.

    Also, 4 years as associate White House Counsel does not suggest a complete lack of experience in “the legal system.”

    I can understand the bemusement at her CV given the other options — I’m reminded of Sam Rayburn’s comment on “the best and the brightest” that he’d “feel a whole lot better about them if just one of them had run for sheriff once.” But obviously there’s never been any sort of requirement that one have been a judge, or even a particularly active lawyer.

    • bmaz says:

      The American legal system I am familiar with relies on courts as its foundation; she has never been in one. What part of that is unclear?

      • temptingfate says:

        The good news is that she will be able to think outside of the box. Having no previous experience means that she won’t be held back by things like precedence, either some other court’s decisions or her own. Kind of like hiring a grade school teacher to code up a sophisticated and secure web interface to multiple backend data sources. Unencumbered by experience.

        • earlofhuntingdon says:

          Diplomatic bureaucrats rarely think outside the box; they defend and enable their institutions, according to the standards set by others.

          • temptingfate says:

            Yeah I know. Just trying to pretend that I could agree with this proposal on some level. Sort of the MSM position.

            I consider a lack of experience in any complex task very important. Sometimes even smart people cannot be trained to a task, all the more so as they grow older and less mentally flexible.

            • Twain says:

              I really don’t want the Supreme Court to be used for on-the-job training. Kagan is not qualified.

        • Mary says:

          That’s one of the absolute best analogies that I’ve seen.

          Kagan’s experiences were such that she has never had to “make it work” from a professional worksmanship standpoint. It’s not just being an academic – it’s being an academic who has never engaged in challenge. It’s not just not litigating or not being involved in litigation, it’s not ever having to deal with the conflict inherent in litigation.

          I do tend to disagree with the general point made here and there that a Sup Ct justice doesn’t need legal training for a lot of this very reason – part of what you are taught is how to craft something that can hold up over time and through various challenges. Not everyone learns it – but those that do can craft a much safer product to stand the test of time.

          A big part of what was frightening in Kagan’s performances in her oral arguments wasn’t just her intial stage fright – I don’t fault that – it was her seeming inability to see the consequences of her statements. It was clear that the other justices did see them (OK, not so clear with Thomas, he learned long ago that “better to remain silent” precept, but still, clear with respect to the other justices.)

          When Stevens had to tell her from the bench that she just apparently wasn’t able to comprehend what he was telling her, that’s bad. When Kennedy and Scalia are both responding with amaze – that’s bad. And to the point about how she will be a facilitator with Kennedy – – her oral argument and its aftermath in Citizens United pretty much spells out the fallacy of the talking point. If swaying Kennedy was a big factor, why wouldn’t you get someone whose proven track record so far shows that they could do it? Katyal did (not that I’d want him either necessarily) – she didn’t.

          And finally, I’ve been really disappointed with the SCOTUSblog input on the recusal issue. They want to pretend the issue will be some kind of numeric issue – a “how many” cases issue, and not a “what kinds” issue. The kinds of cases she will need to be either recusing on, or will be going into decisionmaking as someone who has advocated on one side of the issue for gov, are staggeringly central to our nation. It’s one thing to argue how many cases Marshall had to recuse on and make an argument based on numbers – it’s something else to look at what would have happened if he’d been required to recuse on cases such as Brown v. Board of Education.

          What Kagan brings SPECIFICALLY to the issues of government torture and department of justice solicitation of crime and Executive branch invocation of state secrets where its criminal activity is at issue and Department of Justice atty misconduct in pending torture cases and military commissions for civilians while the courts are open and operating (this one is already a big problem from her solic gen testimony) and rendition to torture and targeted assassinations of Americans, etc. – on all those pipelines she will either be a vote lost to recusal or a vote lost based on her prior advocacy.

          From that standpoint, Roberts and Alito were less egregious picks.

    • Auduboner says:

      Really? “4 years as associate White House Counsel” is a qualifying event? In what, Political Hackery? The White House Legal Department has NOTHING to do with the legal system; it is strictly a political operation, and has been since the Reagan years. What a naive thing to say…

    • Hugh says:

      I would agree with you that the Supreme Court is the one court where judicial experience is not essential. What is needed is a deep understanding of the great legal and social questions of our day and just as importantly a real understanding of the lives and realities of ordinary Americans. What is curious is that you often don’t find these things in judges, especially the appellate judges who now dominate the Court. You could find them though in writers, philosophers, and yes, even politicians, although perhaps not in the last couple of generations of them.

  23. phred says:

    Thanks to one and all for your kind words and condolences : ) I appreciate them very much : ) I’m about to disappear for the rest of the afternoon though, so I won’t have a chance to respond again while this thread is active, but I did want to say thanks before I vanished again : )

    Sorry for interrupting the discussion on Kagan though. I’ve got to hand it to Obama, I keep thinking he can’t get any worse and he keeps proving me wrong. I cannot wait for this loathsome administration to come to an end.

    • BoxTurtle says:

      I cannot wait for this loathsome administration to come to an end.

      Just keep reminding yourself that McBush would have been much worse. And Hillary would have been exactly the same.

      Boxturtle (Edwards supporters, you may serve the rest of us the humble pie now)

  24. BoxTurtle says:

    Miers looks far more qualified than Kagan

    In fact, she was. The GOPers were willing to give her a shot but she did so poorly in the one-on-one’s with the senators that no amount of Bushmail could force her through.

    I doubt Kagan will do that poorly, by all accounts she can talk a good game.

    I think this nomination is a done deal. The majority of the GOPers are saying “could have been much worse” and the progressives don’t have the votes to stop it on their own.

    The far right will oppose her because of her sexuality, real or percived. The far left will oppose her on executive power. I think she’ll get a minimum of 70 votes, unless she develops footinmouth disease.

    Boxturtle (For the next 3 months, she’ll have to respond to questions without answering them)

  25. Andersonblogs says:

    … What *is* underestimated by Kagan’s supporters, I think, is the widespread rumor that she is gay. I don’t know what to make of that rumor; we heard the same stuff about Souter, but I have some personal information that that’s incorrect.

    I think the Dems can get a lesbian justice confirmed in 2010, but I’m not sure whether a *closeted* lesbian justice can be confirmed; the media will go wild over the notion that a nominee is “hiding something.”

    The White House has taken a strong line that she’s not gay, which means that either she’s not, or they’re incredibly stupid. I can’t rule out the latter.

    … Oh, btw I stupidly forgot above that Sotomayor had been a district court judge. Yay Sotomayor!

  26. Hugh says:

    Obama and the Democrats are our enemies. This isn’t to imply anything positive about Republicans. But we really truly need to stop all these foolish posts about how Democrat X is making headway against Republican or even more conservative Democrat Y. It doesn’t matter. The more and better Democrats meme is dead. What we see is nothing but pseudo-fights between corporate Democrats and corporate Republicans. Both are hostile to the needs and aspirations of the American people. Our elites are completely out of control. The Kagan nomination is just the latest manifestation of the underlying disease. It is not that it is a bad choice. It is rather that it is an impossible one. Our elites are building a system to defend not the country but themselves, and not from foreign threats, but from their own people. They need such a system because they would rather loot than govern. But this is also why the next collapse is inevitable and depression with it. Our elites won’t give up the power, wealth, and privilege they have amassed without a fight but our country can’t survive or begin to fix itself while they are where they are. Draw your own conclusions.

    • nomolos says:

      Our elites won’t give up the power, wealth, and privilege they have amassed without a fight but our country can’t survive or begin to fix itself while they are where they are.

      Never were truer words wrote.

      The question is can this be done without extreme violence in that the coporatists own all the branches of gummint?

          • greenwarrior says:

            Compare and contrast Germany’s descent into fascism with what’s happening in our country. Compare and contrast what this administration has done with what the Republicans did before them. Obama is out in front leading the way for things Bush wasn’t able to accomplish. For the things Bush was able to accomplish, Obama and the Senate and Congress (Democratic majorities) is continuing and expanding them. Where’s habeas corpus? Where’s Miranda? Where’s posse comitatus? Where are the rights we used to have to a fair trial? Where’s the Patriot Act and anyone can be declared an enemy combatant on the president’s say so and never be seen again? Where’s health care for you and me? Where’s the bailouts for mainstreet? We’ve got exemptions for environmental impact statements for BP’s exploration on the Deepwater Horizon. And support for nuclear power and “clean” coal. War in Afghanistan expanded, war in Iraq continued, drones in Pakistan, threats to Iran.

            Are the Democrats your friends? They’re no longer mine.

      • DWBartoo says:

        Remember the Bush-Cheney era, BSL, with outrageous assault on reason and humanity a daily occurance?

        Isn’t it wonderful, now that Obama is King, and the Democrats in charge that all of that has gone away?

        And, we are all so much better off, financially, and very much “safer” these days, we have seen all those many progressive dreams begun to be realized, and given that America had the courage and honesty to elect a person of color, who understood our plight, with the most massive mandate for change that I have ever witnessed in my life. And Obama and the Democrats have responded so wonderfully well.

        Now that, BSL, IS fookin’ nonsense.

        What have you got to sell?

        More of the same?

        How serious do YOU imagine Obama’s manifold, and deliberate, failings really are? What do YOU imagine will be the consequence for the nation and its people?

        Or do you agree with Oldgold, that (paraphrasing, here) “Obama is as progressive as a President can be, in the current political climate …”?

        What about people who are “over” effing dense and blinded by cheap partisan “loyalty”?

        How do they factor into the “equation”?

        They may not be “enemies”, though they may well be …

        At the very least, current behavioral “evidence” suggests the Democrats simply don’t give a damn about the country or the people … they may not hate or despise us (like a certain Rahmbo doth) but WHAT may YOU offer as clear “proof” that the Democrats, the politicians, not the voters, care in the least about anything but themselves and THEIR wealth and power?


        YOUR “loyalty”?

        Just wondering, cuz’ all you’ve said so far is, “T’ain’t so!”


        • BayStateLibrul says:

          When I see Senator Durbin, Senator Feingold, Senator Whitehouse and others
          I see people who care.
          To compare Cheney with Obama, is in my opinion off the wall.
          Folks are getting riled up and seeing enemenies where they don’t exist.
          I’m not crazy about Obama’s decisions but believe he is a good man.

          • Mary McCurnin says:

            What does he have to do to change your mind? How many oil spills have to happen? How many drone attacks on innocent people have to happen? How many of your rights have to be watered down? How many lies does this man have to tell you before you realize you have been had? Remember how good we all felt on inauguration night? Remember the crowds of hopeful, cheering people? I wonder how many of those people are dead now due to lack of health care?

          • DWBartoo says:

            Perhaps some are seeing friends where they do not exist?

            Your faith AND belief are becoming, one imagines, a little strained?

            Perhaps not, perhaps you are more hopeful for change, now, for change and believe you see that evidence (you’ve only named names, not shown action or “success”, what is the “agenda” of the Democratic Party)?

            More of the same?

            That is how it appears to many of us.

            Clearly you see something different?

            I respect your right to your own opinions, but to convince anyone here that you, and you alone see truth, will require much more than its mere assertion.

            Feel free to begin our “education” whenever you have the “materials” in order.

            Something of SUBSTANCE please, BSL, not party posies.


            • BayStateLibrul says:

              I never said that I hold the truth.
              My words are all my opinions.
              Your results may vary.
              Maybe we are on the cusp of a mass movement, maybe not.
              In any case, I’ve been reading the stevedore philosopher, Eric Hoffer and
              it blows my mind….
              I’m hopeful by nature…

              • DWBartoo says:

                I had the good fortune to know Hoffer’s first agent, BSL, read on!

                Opinion is one thing, but scolding the rest of us for ours, given that you’ve no substantial evidence to back your own opinion, while, daily, alas, Obama does his best (or worst) to confirm ours … puts you rather at the disadvantage.

                Opinions are free, and ubiquitous, while reason and consideration are a wee bit more taxing, these days.


  27. boltbrain says:

    These might apply more to the previous thread, but they arise out of the commentary on this one.

    If empathy is the capacity to understand the point of view of another, and if life experience works to reduce such capacity, this nomination ensures it, to a remarkable degree.

    To the extent that a nomination might work to close the chasm between the extreme factions of the governing parties, this nomination holds tremendous promise.

  28. spanishinquisition says:


    Rehnquist, Warren, White and O’Connor all had more experience as “active lawyers” than Kagan. All those Supremes were former lawyers who were active in private practice for over a decade, DAs/AGs, etc – not judges, but actively practicing law.

  29. sporkovat says:

    In the space of 48 hours, we have now been presented with a Democratic Administration coming out in favor of perverting and undermining Miranda, siding with the Federalist Society wet dream of breaking up the 9th Circuit and now the appointment of a blank slate unqualified Supreme Court nominee whose main credentials are that she has worked with Barack Obama and is in favor of unitary executive powers. To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young decade.

    perhaps supporting Democrats, no matter what, is not the greatest idea anymore? It has been clear for 20 years, this is what they do in power.

    the time for dismay and mock surprise is over, folks who wish to be seen as having ‘progressive’ or humane views on politics cannot also be supporters of the Democratic Party, these are clearly incompatible positions.

  30. jaango says:


    A great post, and thanks.

    Normally, I don’t follow the fisticuffs in the legal community, given that I am not an attorney, but then, my view of Obama is that he is a “amateur” politician and I take small comfort in this fact, and therefore, my calling Obama an “amateur” is far more complimentary than being called a Neo-liberal.

    Consequently, I feel for Senator Leahy, and whom will have to do the yeoman’s work for having to defend Kagan. When comparing Kagan to Janet Napolitano, Kagan comes up far short by any metric utilized. Thus, Obama runs “true to form” for achieving the lowest common denominator.


  31. earlofhuntingdon says:

    In reply to @88,

    The “experience” you cite is minimal. Among lawyers, it is barely more than where’s the courthouse or the law library, what is a responsive pleading, and where’s the toilet. Many corporate legal assistants have more experience. Yes, Kagan’s version means she rubbed shoulders with the legal elite, but not as a judge or as an advocate, with the trial process, its appeal or the fate of a defendant in her hands.

    Ms. Kagan is not a practicing lawyer, judge or prosecutor. She is not an academic; the paucity of her published material attests to that. She is an elite administrator, a talented bureaucrat, a diplomat, with few passions or political views beyond those of her sponsoring patron or institution.

    Those are the talents of a clerk, an officer holder, a placeholder, not a Justice on the Supreme Court, where the buck stops on the most important legal issues confronting Americans.

    Ms. Kagan will hold to Mr. Obama’s course, which is to the right and to the corporatist status quo. There is nothing liberal or progressive about this nomination. There is no public affirmation of the Constitution or the rule of law. There is nothing “compromising” about it, except to the things candidate Obama claimed to represent.

    • masaccio says:

      I think her lack of publications is the key point. I set out to read her publications from the last 15 years as shown on LexisNexis, and found, if I remember correctly, exactly 2. One was a book review, no better than anything we are expected to put up for Book Salon. The other was a thoroughly boring work on administrative law.

      If she had academic talent, she might be useful. As it stands, the most you can say is that she is a good administrator. I don’t think that is a qualification.

      • earlofhuntingdon says:

        Paul Campos recites the list of her published work here. He read it in less than a day. (Excerpt posted below; emphasis mine.) After 20 years at the top of the academic legal world, that’s appalling in someone regarded as a Supreme Court nominee.

        In the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

        Kagan’s handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president’s power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations.

        That last bold-faced quote is both Obama and Kagan in a nutshell: no stated opinion, whatever the immediately assembled movers and shakers most need to hear to get the speaker what he or she most wants.

    • PPDCUS says:

      Don’t get on the ship ….To Serve Mankind …. It’s a cookbook!

      What the country needs on the SCOTUS is Elizabeth Warren, what we get is Elena Kagan.

      Clearly, this is the change Obama believes in.

      • earlofhuntingdon says:

        The status quo made the near-orphan, scholarship boy of mixed race the American president. The status quo and he define success. What’s not to like. Change would upset the applecart that took him to the White House.

        His politics are the quintessence of how others see America: fine words, base actions. Some of its people are fine when you get to know them, rather than hearing only their loud, self-important voices clang.

    • DWBartoo says:

      Kagan is the Complete Officious Twit.

      Her “success” is assured.

      Her “purpose” is clear.

      As we shall all learn, soon enough, EOH.

      A legacy of incompetence, arrogance, and easy acquiescence …


  32. PJEvans says:

    From everything I’ve already seen, she’s qualified – barely – to be an administrator, but not to be either a practicing lawyer or a judge.

    I think it’s also time to start looking at this administration as as much our opponents as any other conservative administration. They sure aren’t Democrats in anything other than name.
    If they want our support on anything, they have to start giving us concessions in the final bills, without signing statements that take the gains away, and without the bait-and-switch that they’ve used over the last couple of years.

    • sporkovat says:

      They sure aren’t Democrats in anything other than name.

      what a ludicrous selective definition. of course they are Democrats, occupying the leadership ranks of the Democratic Party and governing exactly this way when possible for the last 20 years or more.

      you don’t get to say “Democrats are the great Pony-givers, Obama has not given the Ponies I imagined he would, therefore Obama is not a a Democrat.”

      • PJEvans says:

        They’re not Democrats. They’re Republicans (old style) with the wrong nametags.

        YMMV, but you don’t speak for me.

        • sporkovat says:

          oh, they’re not Branch Davidians, they are Presbyterians with the wrong nametags. sure.

  33. jaango says:

    Here in Phoenix, Arizona, the local Fox outlet is reporting that Kagan will be the “new leader” of the liberal wing on the Court. And of course, Fox also knows that Kagan hasn’t staked out any position on the important issues that face our nation. And Roger Ailes is having a good belly laugh at Obama’s lack of political aggressiveness.

    Is this Obama’s “Meir’s/Mierda Moment?


  34. earlofhuntingdon says:

    These comments are not about Ms. Kagan personally; they are about her qualifications to sit on the Supreme Court, a position she has wanted since high school. No doubt, she is brilliant, clever, exceptionally ambitious. She is professionally accomplished in a narrow way. She has closely guarded her personal life since college, and has closely guarded her political views just as long.

    Ms. Kagan might be a good friend, an able administrator, a pleasing diplomat, but there is nothing in her background to suggest she will be an able judge or a respecter of individual rights when those conflict with corporate or presidential ambitions. That she is widely regarded as pleasing suggests she will not.

  35. Cellar47 says:

    Actually the most notable pushback is the administration’s denial that she’s a lesbian.

    • Mary says:

      I have to admit to ignorance of who Doty is – there’s a pretty well known James Doty who is/was an SEC lawyer with Gov (fmr gen counsel to SEC) and now with Baker & Botts, but that’s not the Salon writer. As best I can tell, the Salon writer has 3 Salon articles – one about the Arizona immigration law and two about Kagan. The first Kagan story I’ve linked bc of the quotes from oral argument it included and that story is about Kagan not garnering much respect from the other justices.

      On the Supreme Court, not a lot of respect for Elena Kagan

      If Doty’s name should mean something to me, I have to fess up that it doesn’t.

  36. cadam72 says:

    Great Article!! You failed to mention the 40, yes 40, SC Justices that attained the role without prior judicial background but due to their work in other fields such as go vernemtn service,academics,etc. Do your homework and understand how the nominating practice works! So was John Jay, Rehnquist, Frankfurter, etc not qualified?

    Name of Justice Prior Occupations Years On Court Appointed By President:
    1. William Rehnquist Asst. U.S. Attorney General 1972-2005 Nixon (Assoc., 1972),
    Reagan (Chief, 1986)
    2. Lewis Powell President of the American Bar Ass’n,
    Private Practice 1972-1987 Nixon
    3. Abe Fortas Private Practice 1965-1969 Johnson
    4. Byron White Deputy U.S. Attorney General 1962-1993 Kennedy
    5. Arthur Goldberg U.S. Secretary of Labor 1962-1965 Kennedy
    6. Earl Warren Governor of California 1953-1969 Eisenhower
    7. Tom Clark U.S. Attorney General 1949-1967 Truman
    8. Harold Burton U.S. Senator 1945-1958 Truman
    9. Robert Jackson U.S. Attorney General 1941-1954 F. Roosevelt
    10. James Francis Byrnes U.S. Senator 1941-1942 F. Roosevelt
    11. William O. Douglas Chairman of the S.E.C. 1939-1975 F. Roosevelt
    12. Felix Frankfurter Asst. U.S. Attorney, Asst. Secretary of War,
    Prof. of Law at Harvard 1939-1962 F. Roosevelt
    13. Stanley Forman Reed U.S. Solicitor General 1938-1957 F. Roosevelt
    14. Owen Josephus Roberts Special Counsel in “Teapot Dome” investigation and trials 1930-1945 Hoover
    15. Harlan Fiske Stone U.S. Attorney General 1925-1946 Coolidge (Assoc., 1925),
    F. Roosevelt (Chief, 1941)
    16. Pierce Butler County Attorney, Private Practice 1923-1939 Harding
    17. George Sutherland U.S. Senator 1922-1938 Harding
    18. Louis Brandeis Private Practice 1916-1939 Wilson
    19. James Clark McReynolds U.S. Attorney General 1914-1941 Wilson
    20. Charles Evans Hughes Governor of New York,
    U.S. Secretary of State 1910-1916,
    1930-1941 Taft (Assoc., 1910),
    Hoover (Chief, 1930)
    21. William Henry Moody U.S. Attorney General 1906-1910 T. Roosevelt
    22. George Shiras, Jr Private Practice 1892-1903 Harrison
    23. Melville Fuller Private Practice 1888-1910 Cleveland
    24. Lucius Quintus Cincinnatus Lamar U.S. Secretary of the Interior, U.S. Senator 1888-1893 Cleveland
    25. Joseph Philo Bradley Private Practice 1870-1892 Grant
    26. Salmon P. Chase U.S. Treasury Secretary 1864-1873 Lincoln
    27. Samuel Freeman Miller Private Practice 1862-1890 Lincoln
    28. Noah Haynes Swayne U.S. Attorney for Ohio, Ohio Legislator 1862-1881 Lincoln
    29. Nathan Clifford Maine & U.S. Attorney General 1858-1881 Buchanan
    30. John Archibald Campbell Alabama Legislator 1853-1861 Pierce
    31. Benjamin Robbins Curtis Massachusetts Legislator 1851-1857 Fillmore
    32. John McKinley U.S. Senator 1838-1852 Van Buren
    33. Roger Brooke Taney Maryland & U.S. Attorney General,
    U.S. Treasury Secretary 1836-1864 Jackson
    34. Henry Baldwin U.S. Congressman 1830-1844 Jackson
    35. Joseph Story Speaker of Mass. House of Reps., U.S. Congressman 1812-1845 Madison
    36. John Marshall U.S. Secretary of State 1801-1835 Adams
    37. Bushrod Washington Virginia House of Delegates,
    Reporter for Virginia Court of Appeals 1799-1829 Adams
    38. William Paterson Governor of New Jersey 1793-1806 Washington
    39. John Jay President of the Continental Congress,
    U.S. Secretary of Foreign Affairs 1789-1795 Washington
    40. John Rutledge Governor of South Carolina 1789-1791, 1795 Washington

    • bmaz says:

      Um, if you would have read the link to my earlier article, you would have realized I had covered that previously. But above and beyond that, there was extensive discussion in that post and this one of BOTH Kagan’s complete lack of experience as an attorney, in addition to having no judicial experience. Maybe you should do your reading before telling me to do my homework. Bottom line is there are a lot of ways to gain experience in the US court system, and Elena Kagan has effectively none of them.

      • DWBartoo says:

        bmaz, an OT, if you will permit it …

        You piqued my curiosity.

        Whatever happened to the four young men, who were your clients, accused of murdering the Buddhist monks?

        Presumably, all were found guilty (based upon what you said), but what happened to them (being innocent) and where are they now?


        • bmaz says:

          They were charged with nine counts of capital murder with the death penalty and held in that status for about 100 days when, by a curious set of events (way too long of a story for here) the actual murder weapon was found behind an office door at the Sheriff’s department and the real culprits found. The four sued and were paid handsomely. By the way, guess how they became suspects in the first place? Yep, a “tip” from an inmate at the Tucson insane asylum. No. I am not joking.

    • spanishinquisition says:

      What an insult to Supreme Court nominees who had years of experience as active lawyers. Since you bring up John Jay, where is Kagan’s body of work equivalent to John Jay’s co-authoring of the Federalist Papers? Numerous others that you list had experience as DAs and AGs – how much experience does Kagan have as a District Attorney or Attorney General? Then you cite the likes of Abe Fortas and others who had serious experience in private practice – can Kagan point to trial experience winning something like Gideon, which Fortas won? I’ll give you that she’s a good college administrator, but that’s no reason for someone to be on the Supreme Court and you don’t even need to pass the bar exam to be a college administrator.

    • Mary says:

      ***Dang – edited to add, skip this and just go upthread to 125*****

      Try actually READING the post and if that’s too much, go directly to the comment from bmaz @7.

      His point is not that she hasn’t been a judge, it’s that she has no experience with the judicial system as a system. Even for an academic, she’s woefully underqualified on that front. She hasn’t taken on any controversial issues and tackled them and opened herself up to peer and pragmatic and proceduraly review on those fronts – she hasn’t interacted with legislatures to draft legislation with all its short term needs and long term impacts – she hasn’t had to deal with the law as a product that she is responsible for crafting and that must stand up to challenges – either as a legislator, a litigator, a judge or even as an academic who has the kinds of writings that are being subjected to scrutiny and attack and must hold up.

  37. Hugh says:

    Bob in AZ, I expect their will be a lot of apologia of Kagan. Most of them will be exhorting us not to believe our lying eyes. That has always worked out so well in the past.

    • earlofhuntingdon says:

      Today’s glowing NYT’s profile goes further and describes her as a mirror image of candidate Obama, not President Obama.

  38. earlofhuntingdon says:

    The issue is not prior judicial experience. It is prior experience with trial and appellate courts of law, with the administration of justice and the prosecution of both heinous and petty crimes, with the choices inherent to resolving contests between behemoths (and not just the egos in the faculty lounge) and between them and the precarious private citizen.

    It is about having demonstrated the ability to persuade others to come to her point of view, not just in finding a face-saving way to agree to theirs.

    It is having an intimate knowledge of the damage excessive power can do, whether in an engine or an administration, to the Constitution on which we stand or fall, and more importantly, in the lives of the people who do the working and paying and living and dying, whether in Bedford Falls or Pottersville.

    Having the brains to do a job is one thing; having been tested and proven is quite another. Every ensign imagines being an admiral and commanding fleets. Being able to single up all lines and embark without bashing rudder or wharf, to sail in troubled waters with a damaged ship and crew and while under fire and to bring both safely home again is quite another.

    Ms. Kagan is a clever friend and confidante of this president. Being an able judge of the rest of us is an aspiration, not an ability. The president had more capable alternatives; he ignored them willfully.

    • oldgold says:

      John McCain is a good scholar.

      No, he graduated from the USNA 894th out of a class of 899.

      • earlofhuntingdon says:

        I believe your comment responds to mine @144; that’s the source of your quote, not @127. According to the OED, irony is

        A figure of speech in which the intended meaning is the opposite of that expressed by the words used; usually taking the form of sarcasm or ridicule in which laudatory expressions are used to imply condemnation or contempt.

        Mr. McCain is a good scholar the way Ms. Palin is a fluent communicator.

        I was disagreeing with your conclusion that Ms. Kagan seems qualified, or as I would put it, is among the most qualified candidates Mr. Obama could have picked.

        She is exceptionally talented as a student, a mid-level bureaucrat in government, as an academic administrator and fund raiser. There must have been something about her demeanor that elicited tenured preferment at both Chicago and Harvard, despite the thinness of her published views. No doubt, she has other talents as well.

        Among those routinely considered for appointment to the Supreme Court, graduating at the top of her undergraduate class and among the top of her law school class is routine, the minimum expected standard. So, too, are decades of exceptional professional achievement.

        Federal circuit court appointees, the rank below the Supreme Court, for example, routinely have spent years as successful corporate general counsels, senior government administrators, officials elected to high office, academics with long lists of published works and with defined views. On that score, and among the elite few ordinarily considered for Supreme Court appointments, Ms. Kagan’s score is average or below average.

        Ms. Kagan has the intellect and drive to be worthy of consideration. It is her connection to Mr. Obama, their shared view of the importance of being careful, that seems decisive, not her views themselves or her experience in handling the lives, the issues of litigants either powerful or powerless that would come before her and await her judgment.

        Mr. Obama hasn’t the credentials to sit on the Supreme Court either, and there are those who consider him qualified to do many things.

        • oldgold says:

          Tell you what, that is the most cogent statement I have heard from those who question the wisdom of her nomination.

  39. tjbs says:

    With Thomas , Roberts, Alito and now Kagan the question is not are they at least qualified rather “Is this the 11th best qualified person, in experience and temperament, in the whole country to fill such an important position?

    Of course I wouldn’t expect bush to think that deep but the genius, 11 dimensional chess guy, obama presents Kegan as that 11th best the country has to offer and that has me questioning where his credentials came from.

    Great post from a principled position, bmaz.

  40. oldgold says:

    Kagan appears qualified to me.

    She is smart and well educated. She graduated summa cum laude from Princeton. She earned her JD magna cum laude from Harvard and was the supervising editor of the law review.

    She has been exposed to the work of appellate judges. She clerked for Judger Abner Mika of the the US Court of Appeals and Justice Thurgood Marshall of the US Supreme Court.

    She is a good scholar of the law. She was a tenured Professor at the University of Chicago School of Law. An article she published in the Harvard Law Review in 2001 was named that year’s top scholarly article by the ABA section on Administrativer Law.

    She understands politics. She served as Deputy Director of the Domestic Policy Council in the Clinton Administration.

    She is an experienced administrator. She served as Dean of the Harvard Law School. There she exhited a consensus-building leadership style. The school prospered during her tenure.

    She has recent experience working in the US Supreme Court as the Obama Administration’s Solicitor General.

    These are impressive credentials.

    Now, whether it is a good choice from a political perspective is a dicier issue that will require more information and consideration.

    • sporkovat says:

      Democrats trump card for the last decade or two has been Supreme Court nominees, and the impact they have over time. Scolds would say, “But think about the Supreme Court!” when they were unable to defend supporting a corporatist Democrat on the merits of their policies.

      so now, it seems Least Worstism even applies here – the Leader has picked someone, and loyal followers agree that the nominee “appears qualified.”

      well Republicans also pick candidates to the SC who “appear qualified” so again, no difference there.

      from a political perspective it is basically certain that Obama’s pick will move the court vastly to the Right, further entrenching a corporate, authoritarian legal philosophy into the Judicial Branch. Thanks, Democrats! this was the one thing you used to be able to point to as a differentiator between you and the buffoonish Republicans, now we know it was a lie like all the others.

      • Mary says:

        Yep – it’s a bit like rattling off Luttig’s or Mukasey’s accomplishments and extolling Obama for such a pick. Heck – I hear Ken Starr is available.

    • Mary says:

      What did you find so impressive about her work as Solictor General, other than the fact that she had the title?

      Ditto on her time as Dean of Harvard? Was it all the white male hires? Or possibly the embrace of Jack Goldsmith? She raised lots of money for Harvard – so if that’s what stimulates you to be impressed, then you ought to spell it out. I’d be interested in your direct knowledge of her “consensus building” leadership style, as my understanding is pretty much that there was no consensus in favor of the Goldsmith hire and it was a cramdown.

      In what way do you see a down at the mouth, unacknowledged Harvard law being lifted out of the gutter to suddenly “prosper” under her leadership? She was a good lobbyist for Harvard from a $$$ standpoint – she did nothing to increase or enhance the school’s reputation or diversity and during her time at Chicago and Harvard she generated almost nothing of note academically. The key to the administrative law aspect and article is that it was administrative law – iow, Executive branch “internal” law. “Law” that, unlike real law, is almost never subject to judicial review.

      • spanishinquisition says:

        “What did you find so impressive about her work as Solictor General, other than the fact that she had the title?”

        Yeah, titles and degrees don’t really tell you anything. Bush had a Harvard MBA, so that must mean he’d be a great President.

    • bmaz says:

      Yes, of course, a few months of really what was really pretty piss poor work as SG certainly qualifies her. No reason for a lifetime appointee to the highest court in the land know their ass from a hole in the ground about courts, cause you know, she has been to Princeton and Harvard. What a fucked up world.

    • spanishinquisition says:

      So tell me what you thought of Harriet Miers credentials. You certainly don’t require much for someone’s credentials to be considered “good” for a lifetime appointment to the Supreme Court.

  41. Mauimom says:

    Remember how we all used to wring our hands [and be urged to do so by Planned Parenthood et al.] and worry about “what would happen to the court” if a Republican president were elected?

    And remember how we all used to hang on by our fingernails, hoping that Stevens wouldn’t die or resign during Bush?

    Seems kinda foolish now, non?

    • Mary says:

      Yeah – I remember, too, the “selling point” for Obama over Clinton was supposed to be these Executive power/rule of law issues.

      Instead, the only real claim to fame for Obama has been his grossly mishandled healthcare legislation and I have to think Hillary would have done a better job on that than he did.

      • oldgold says:

        Instead, the only real claim to fame for Obama has been his grossly mishandled healthcare legislation and I have to think Hillary would have done a better job on that than he did.

        Say what? As much as I admire Hillary, I wouldn’t say she did a whiz-bang job with healthcare when she had her turn at bat.

      • b2020 says:

        At mishandling the health insurance bailout legislation?

        Maybe Clinton would have seen it as an opportunity for payback – one advantage she had was that, unlike the standard bearer of post-partisan depression, she had already been forcefully written off and spit upon by the ‘stablishment, and might not have owed them much for her political comeback as Senator. But then, she let herself be bought off with Colin Pow-eels job, I don’t think that she would have gone after the health industry either. It is a pity, but it is a pattern. After all, McCain does not seem to see much wrong with torture these days either, and if he of all people does not know better to say better, then who will? Can’t be looking for virtue in a whorehouse.

      • Mary says:

        ?? In addition to Hillary not being PResident at the time ;) the time was also very different and the Congressional makeup was very different and the crisis level of the national healthcare issue was very different -both with respect to number of covered and handling of issues like pre-existing conditions. I don’t know how you get a then & now comparison to be valid. But Hillary was always much more committed to a public option end point than Obama and she understood and was truthful (in a way Obama was not) about how a public option would work vis a vis a mandate.

        Obama made a pretense at backing a public option and strongly and publically eschewed a mandate – – – in his campaigning at least. When Krugman called him on what was either inability to comprehend the mechanics or deliberate mis-speaking, Obama got tiffed and miffed and has basically put Krugman on his “dead to me” list, even while we have been surrounded by financial crisis and Obama’s inner circles for advice were linked to the vehicles that took us into this crisis.

        So yeah – I think Hillary would have been better and base that on her more an honest disclosure, demonstrated commitment, understanding and better informed/more competent alliances, combined with her much broader circle of experienced persons to pull from (Obama has been very insular on that front and when he does go outside his Bushian bubble it is to run to someone like a Gregg – iow, to make a stupid and fruitless gesture)

  42. earlofhuntingdon says:

    The appearance of being qualified, like needles and splinters, is in the eye of the beholder.

    John McCain is a good scholar. He was exposed to the work of competent senior admirals, his father (a former CincPac) and grandfather. He graduated from the Naval Academy at Annapolis, MD, where he researched the effects of alcohol on navigational ability and explored twin-screw propulsion at the Holiday Inn. He has recent experience in the Senate, consorting with competent staff.

    Mr. McCain survived more than five years as a prisoner of war, and lost the full use of his arms as a result of torture, not in Gitmo but in Vietnam. In Congress, he consistently refused to promote efforts to search for POW’s many believed remained in SE Asia, and has opposed better benefits for veterans and better funding for the VA.

    He acquired administrative experience commanding a post-Vietnam era naval aviation base in Pensacola, FL (when even history majors could fly jets because the war was unpopular and base funding was low).

    Mr. McCain understands politics and developed a consensus-building style as a Naval liaison to Congress. He advocated for expensive, Congressionally popular programs that the Navy and Pentagon explicitly did not want. He could remember where a drunken senator parked his car better than the senator or his staff. And he could show a Congresscritter how to have a good time in DC, whether it be in the Tidal Basin, the Mayflower or a suburban bedroom community.

    He has a hair-trigger temper and makes Robert Conrad and David Suchet seem positively confident about their Napoleonic stature. Whether those qualifications would make him a good president is a dicier issue that will require more information and consideration.

    • b2020 says:

      Instead, we got Mr. Competence, Fast Track Senator and Constitutional Scholar.

      If the job is to fuck up the Constitution and the nation, I’d rather have a fuck-up “in charge” than a functional sociopath. Bygones thinks he is coasting to re-election, and nothing I have learned about The People gives me any confidence he is wrong.

      But I am sure we can all convince ourselves that Once More ‘Bama is preferable to Palin 2012, or whatever the Fuck It Up party will come up with.

  43. oldgold says:

    from a political perspective it is basically certain that Obama’s pick will move the court vastly to the right

    I remain to be convinced of that.

    • earlofhuntingdon says:

      It’s not the force of her personality that’s at issue; it’s the delicate balance of the Court that Stevens helped create that will be upended by the don’t make waves Kagan.

      Roberts, Alito, Scalia are not afraid of waves, Kennedy knows how to swim in them, and Thomas is not afraid of scorn. Ms. Kagan will find that in her new setting her brilliance is commonplace, and her devotion to not making waves is a vulnerability, no matter how much Obama thinks it an asset.

  44. Andersonblogs says:

    Eugene Volokh, who works in First Amendment law himself, has some thoughts on Kagan’s scholarship. He points out it’s not just how much you write, it’s who reads it:

    Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.

    He finds her First Amendment work very strong analytically but without much of a read as to how she might vote.

    … I think “courtroom experience” is important, and there’s a good argument for appointing a well-rounded litigator who’d never been a judge. The problem is that the bench right now is *full* of circuit-court judges, with one (Sotomayor) who’d been a district-court judge. It needs an outsider like Kagan, just as it needs someone who’s intimately familiar with litigation procedure, and probably some other perspectives I can’t think of offhand.

    • bmaz says:

      I don’t disagree with the diversity argument you make; but couldn’t we find one that isn’t a circuit court judge but actually has at least a little involvement in, and knowledge of, the legal system? Kagan was the only choice?

    • earlofhuntingdon says:

      Two of her three law review articles. Along with two book reviews and a couple of shorter essays, that’s the total of her scholarly output in 20 years. That would not earn a would be scholar tenure at Chapman, let alone Berkeley or Yale, and probably not at Kagan’s Harvard.

      Ms. Kagan’s qualifications are not her scholarly success. They are her brains and ambition, her bureaucratic skills, her friendship with Obama, and her devout unwillingness to make waves, whatever she may think. Not a strong beginning as one of the nine most senior judges in America.

  45. secularhuman says:

    Y’know you make a lot of great arguments and then you say something like this:

    “Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas.”

    And call the entire essay into question. With Clarence Thomas sitting on the bench you can write that.

    • bmaz says:

      Quite frankly, Thomas’ experience in the legal system was far, far greater than Kagan’s is. Not saying he was a proper nominee, or that Miers was. They were not good nominees; neither is Kagan. But you cannot tell me that Thomas and Miers were unqualified and then argue Kagan is.

      • secularhuman says:

        “But you cannot tell me that Thomas and Miers were unqualified and then argue Kagan is. can’t I argue.”
        First of all, I’m not arguing that she is qualified; I am asserting that your elevation of Clarence Thomas — whose record as a wretched rubber-stamper for anything Scalia writes is well-known by now — and Harriet Miers — who left an ostensibly promising career in law to become one of a bunch of sycophantish counsels to Bush –over Kagan is, on the face of it, preposterous. Miers’ nomination was so blatant an example of egregious political patronage it didn’t even pass muster with the rubber-stamping GOP congressional leadership. If Kagan is kneecapped by a similarly offended Democratic leadership then we can call that one a draw. But you can’t say that Obama just looked down the hall, spotted Kagan in her office and said “Let’s give it to Elaine. She’s always been nice to me” which is about that Bush did with Miers.
        Look, I’m not in your league as a legal analyst or judge judger. You obviously know your stuff. But it’s eminently arguable that experience as a judge is not in itself a qualification for the Supreme Court. Otherwise every bozo wearing a robe is qualified. In Thomas’s case, his specific experience, his known decision-making on the bench, hardly count as a qualification. He was a right-wing ideologue sent up for nomination by a cynical president playing the race card.
        Experience as a poor judge shouldn’t count in any circumstance as a qualification. It’s a disqualification.

        • bmaz says:

          But you can’t say that Obama just looed down the hall, spotted Kagan in her office and said “Let’s give it to Elaine. She’s always been nice to me”

          Yes, that is just about exactly what I am saying; he sure didn’t pick her from her great credentials for the job. I find it impossible to believe anybody that was not a personal friend of Kagan could or would have ever thought her appropriate for the Solicitor General slot or the Supremes. I am not saying I would rather have Thomas or Miers, simply that their qualifications for the job were every bit as good and, quite arguably far better than Kagans.

    • b2020 says:

      You know, you have one thing right – if Kagan has any smarts, she’ll posture as the female Thomas – no questions, ever. She can put her own spin on this act, too: avoid authoring an opinion – any opinion – at all costs. If she can write a “brilliant analysis” without a hint of position, why, she might even bring us the first Immaculate Judgement (after all, we already had legislature w/o author in this blighted nation).

  46. earlofhuntingdon says:

    Leave it to Digby to be pithy about Kagan and Obama:

    To Obama, it isn’t a compromise at all. These people truly are his preference because they don’t make trouble and that’s what he most respects.

  47. earlofhuntingdon says:

    According to the NYT, Ms. Kagan has wanted this nomination since high school. She has worked diligently to conceal her personal and professional opinions, while making waves as a top Ivy League scholar. No mean achievement. It testifies to her bureaucratic as well as intellectual smarts, but casts doubt on her suitability for the court.

  48. waitomo says:

    Nice. 1150 words about Kagan and her lack of experience, yet you fail to note one of the most fundamental reasons she has no judicial experience. This is from that hard-to-find website, Wikipedia:

    On June 17, 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who had taken senior status in 1996. The Senate Judiciary Committee’s Republican chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton’s term ended, she and Allen Snyder were unconfirmed nominees for the D.C. circuit court.

    Talk about a glaring omission.

    As to Kagan’s “stunning lack of curiosity and involvement in the important legal issues of her age,” that’s just flat-out, hyperbolic BS. After continuously trashing her as a blank-slate, Glenn Greenwald (your champion) was forced to admit:

    NPR’s Nina Totenberg yesterday uncovered (or was provided) a relatively encouraging piece of evidence that no public commentators (including me) had previously discovered: a 2005 letter co-signed by Kagan which opposed a proposal by Lindsey Graham to strip “War on Terror” detainees of the right to habeas corpus on the ground that the proposal was a violation of core American principles

    Greenwald also admitted that her principled stand on gay rights, which led to the contretemps over military recruitment at Harvard, gave us an inkling as to her political ideology.

    But I guess it’s much easier to just throw a lot of crap out there and hope it sticks. These days, outrage sells. Never mind those pesky facts that tend to get in the way of overwrought hyperbole. I’m thinking of what that reminds me of… cough… Lipton… Tetley… Celestial Seasonings…. cough.

    • earlofhuntingdon says:

      Thin gruel for 20 years in the legal trenches. Greenwald wasn’t “forced” to admit anything; the quote you cite he provided, as was the observation that Totenberg only recently uncovered (or had planted on her by the White House) knowledge of a five year-old letter that Kagan signed along with many others, when she was Dean of HLS.

      Ms. Kagan was not appointed as a federal judge, along with others, thanks to GOP obstructionist tactics at the end of Clinton’s presidency. She has no record as a judge nor even a record from the interview or nomination process. Only later did she join Harvard’s faculty and then become Dean, about which there is a record, albeit thin in light of the prominence of her office. The questions about the paucity of her public record are as critical of Obama as they are of Kagan.

    • bmaz says:

      Call it crap all you want; you have not, and cannot, effectively dispute the facts. Hyperbolic? That would seem to be the cynical shills claiming Kaganis qualified on her record of nothingness. Contrary to your ranting blithe blather, I have completely supported my arguments; it is you that has not. Take you tea and shove it.

      • waitomo says:

        Such a reasoned reply.

        In light of YOU telling us that YOU’VE completely supported YOUR arguments (that’s trustworthy) tell us all, is this statement of yours true?

        I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States.

        As Seth Myers says on Saturday Night Live… Really?

        It’s a FACT that Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals, and for Thurgood Marshall when he was a Justice of the Supreme Court.

        So contrary to your blatant falsehood, she does have experience “in the court system of the United States.”

        If you’re going to propagandize, at least make it remotely credible.

        • bmaz says:

          Well, where I come from, you generally don’t have experience in a court unless you have appeared or sat as a judge in one; so no I don’t think some early clerking does too much in that regard. It was you who stooped to the tea party bullshit and you are all hurt that I stepped down and fired right back at you? Pretty weak. Right back at you.

          • waitomo says:

            Oh, so now you’re qualifying your previous statements.

            Well, where I come from, you generally don’t have experience in a court unless you have appeared or sat as a judge in one;

            Well, based on those new parameters, I guess Kagan does have the experience you require. As Solicitor General, she’s argued quite a few cases in front of… wait for it… the Supreme Court. So she has appeared in a court, hasn’t she?

            Why can’t you simply admit that you’re painting with too broad a brush here? What’s so hard about that?

            As to the Tea Party, they tell lies and omit pertinent facts to rile people up; all in the hope that no one notices. I think that’s the analogy I’m drawing. And I think you know that or else you wouldn’t have to keep clarifying what you meant to say.

            • bmaz says:

              Listen, I am not qualifying squat; my arguments have been consistent from the start. You are just disingenuously spewing bunk and then congratulating yourself on it. Get lost.

                • bmaz says:

                  You have not seriously questioned me. If you have something substantive, fine; otherwise, you are done hijacking this conversation thread.

                  • waitomo says:

                    Sorry to point out your inconsistencies and omissions. I wasn’t aware that actual honest debate was frowned upon here. And if you consider “hijacking” to be debating the matter at hand, this is a pretty bizarre place.

                    • waitomo says:

                      I did include a tea-party crack. Guilty as charged. But that’s only because I was incredulous that you could write this piece without including the pertinent fact about why Kagan has such a lack of bench experience. It’s extremely relevant to this nomination and the fact that it got omitted is very troubling. Be as harsh as you like, but for God’s sake, be fair.

                      And I understand everyone’s frustration with not getting Diane Wood, but that doesn’t mean we have to go out of our way to undermine Kagan through omission and insinuation. There’s a lot we don’t know about her, but there are some things we do, and in my opinion, they seem pretty progressive.

                      It just seems to me that in a lot of the leading progressive blogs, honest discussion has been replaced with paper-thin outrage. And that mirrors what many of the Tea Party loons do. I was making a general political observation about that. It was fairly well barbed, but it was general.

                      So I call your reset.

                    • oldgold says:

                      It just seems to me that in a lot of the leading progressive blogs, honest discussion has been replaced with paper-thin outrage.

                      Damn, that is one sweet sentence.

                    • Leen says:

                      You folks seem like those ( many at Crooks and Liars and others) who constantly criticize Chris Matthews etc without ever watching his news program.

                      If you actually came to this progressive blog more often you would know that the discussions go deep and can become rather heated.

                      Easy to make such a “paper thin” argument when you are not asked to back it up.

                    • bmaz says:

                      There is a reason people criticize Matthews, and it is because he is a self important fatuous screaming gasbag.

            • earlofhuntingdon says:

              Ms. Kagan’s performance as SG has been middling. She has argued a few cases over the last several months, her first experience at doing so. She has not performed well, despite having the resources of the DoJ, not a large or small firm, behind her. No doubt, she was appointed as SG anticipating being short-listed for a seat on the Court itself. Such things among insiders come about as a result of detailed planning, not by changes in the weather.

              The bulk of her experience has nothing to do with litigation or the combative work of real lawyering. Whether Jean or Jamal gets an A in contracts or can meet with a recruiter on campus, whether Billy Bob contributes $20 million to the school, and whether Larry Summers or red faculty members talk to blue ones is important to HLS. They do not affect citizens or the country as a whole as deciding whether corporations have the voice and reach of a human citizen, whether and how the president is subject to Congressional oversight, and whether the FCC has regulatory authority over the entire Internet.

              More important, however, is that we don’t know what her views are, how consistently she has held them, and how they may affect her judgment as a member of the court of last resort.

              • oldgold says:

                More important, however, is that we don’t know what her views are, how consistently she has held them, and how they may affect her judgment as a member of the court of last resort.

                This is important and as a result she has an obligation to be more forthcoming at her nomination hearing than nominees with more complete records.

                • bmaz says:

                  Agreed. And that said, she could not seem to muster the gumption to do that even for Solicitor General confirmation hearings and pretty much flat out repudiated her previous statement, that nominees should be forthcoming, as no longer being operative. So, dollars to donuts we end up with a blank slate who stonewalls the SJC exactly like the last three Supreme nominees have, or worse. And we will have the Democrats on the committee who will say and do little, if anything, about it and that will be that. This is somewhat different than my primary gripe, but every bit as important as a corollary. No experience, no record and no openness is pretty much the trifecta.

                • earlofhuntingdon says:

                  Agreed. The process that bmaz describes as the trifecta @190 will mean that Democrats can look forward to voting on future S.Ct. nominees such as Brett Kavanaugh and the Alito and Roberts clones now temporarily ensconced at the AEI or Harvard.

        • john in sacramento says:

          What does she believe in?

          Sell me

          So far I agree with bmaz and the many others who disagree with her nomination ultimately based on the fact that she doesn’t seem to believe in anything other than having an Ivy League resume (which does not impress me in the least, and is now a huge turnoff) and being a good self-promoter

          So what does she believe in?

          I would give a list of questions, but that would give you an idea of what I want … not what she really believes

          1) What does she believe? 2) And how has she implemented those beliefs into practice?

          • waitomo says:

            Sell you? Admittedly, she doesn’t have as extensive a track record as I’d like. But what there is does not sound all that frightening. In fact, it sounds pretty progressive.

            Despite all the noise about her being an inexperienced blank slate, there are excellent nuggets out there which shed light on her thoughts.

            In 2005, she wrote a letter to Sen. Patrick Leahy concerning detention practices at Guantanamo. From Nina Totenberg’s NPR piece:

            “To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. ”

            “When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

            Does that sound like something out of the Cheney regime?

            Also from that piece:

            So ideologically diverse were her hires that this generally liberal Democrat even won a standing ovation from a prominent bunch of young conservatives.

            The occasion was the annual convention of the conservative Federalist Society. Afterward, Kagan grinned at the crowd and, with charismatic candor, declared: “You are not my people.”

            She also took that principled stand for gay rights at Harvard which was a firefight she didn’t have to engage in.

            And as I pointed out, the only reason she doesn’t have as extensive a track record as past justices is because Orrin Hatch chose to run out the clock on her nomination to the Court of Appeals. She can’t change that. But the fact that it was left out of this piece entirely… well, you decide why that was.

            As to the charges about her views of presidential authority, the insinuations would leave you to believe she’s no better than John Yoo. But that’s CLEARLY not the case if you read what she wrote above.

            Glenn Greenwald speaks and that’s all the ammo many need. Never mind that he makes so many baseless accusations it’s hard to keep up. He said today on Democracy Now that Kagan backed off her fight on gay rights at Harvard because a couple of hundred million dollars were at stake in federal funding. He basically belittled her by insinuating that she sold out her her values for that money.

            I’ll let Greenwald speak for himself:

            “…so once that law was upheld as constitutional, Harvard Law School faced the loss of a couple hundred millions of dollars, out of an endowment of $60 billion that the college has.

            So the minute there was a cost to this great moral stand that she was taking, she immediately reversed herself and allowed military recruiters to come onto campus. That doesn’t sound like much of a commitment to a moral position to me, abandoning it the minute there’s a cost to it.”

            Pretty damning stuff, right?

            Well… Harvard’s total endowment at the time was $19.3 billion, not $60 billion as Glenn claimed. That was the foundation of his claim and it was completely wrong. And that’s how this kind of junk spreads. Elena Kagan didn’t sell out her morals nor did she sell out gays. She fought the good fight, and when faced with the harsh reality about losing major federal funding, she followed federal law. It’s easy to criticize her when you’re not the Dean of Harvard Law School and don’t have to make those decisions, and it gets even easier when you simply make crap up.

            So who do I choose to believe? Liars like Greenwald and people who omit glaringly pertinent facts about Kagan like bmaz, or do I believe Kagan herself?

            I’m not claiming she’ll be the next great liberal lion of the Supreme Court, but she’s a damn sight better than people with their own agendas are making her out to be.

            • DWBartoo says:

              When you reach the point of calling thoughtful and conscientious commentators of the stature of Greenwald and bmaz liars, you betray the paucity of your argument, waitomo, and render your comments less than useful to the rest of us.

              bmaz has earned the respect accorded him.

              You have chosen to lose any that the merits of your argument and simple civility would otherwise accord you.


              • waitomo says:

                I didn’t call bmaz a liar. I simply pointed out how he glaringly omitted a certain fact about Kagan relating to her lack of judicial experience. And then I pointed out inconsistencies in his arguments. I never called him a liar.

                I DID call Greenwald a liar because he is one. He simply lied about Kagan today to bolster his case against her. In fact, it was pretty defamatory, basically claiming she sold out gay rights for some federal funding. But the basis for his claim, the picture he painted, was not even close to true.

                I couldn’t find a single source that corroborated his claim that Harvard had/has a $60 billion endowment. They don’t. And they never have. The most money in the endowment at any one time was about $37 billion in 2008. And today it stands at $27 billion.

                So until he can conjure up some Wall Street mumbo-jumbo to make $19.3 billion appear to be $60 billion, I consider him a liar. And remember, he wasn’t lying about stealing a candy bar, he was making a pretty damning accusation against Kagan. And coming from a commentator “of the stature of Greenwald,” it’s pretty pathetic that someone of his supposed stature has to resort to lying.

                • DWBartoo says:

                  I apologize, waitomo, you did not call bmaz a liar, merely an omitter.

                  And, truth to tell, 60 million, did stick out when I read Greenwald, but I’m not yet convinced he is a lying liar.

                  Thank you for taking me rather gently to task.

                  Welcome to the fray.


            • bmaz says:

              It was not relevant to the point as I saw it; I was certainly aware of the fact, honestly never thought about inserting it. For what it is worth, it was certainly not intentional, just didn’t seem pertinent. I will grant she should have been confirmed in 1999; I wish she had been and would feel one hell of a lot better about her if she had been. But she was not. There are also plenty of ways to acquaint yourself with the court system other than being jumped straight in to a circuit court of appeals judgeship. I wish she had found it within herself to do so. But she did not. It is what it is, she will be confirmed and that will be that.

            • john in sacramento says:

              Sorry. You’re going to have to do better

              A few quotes out of one article referring to her criticism of a previous administration’s policies and not following through and continuing the criticism of the current administration for utilizing the same torture policies seems to me to be intellectually dishonest on her part.

              And the Federalist Society quote means nothing to me without context, because something said in print can be easily misunderstood because of the lack of visual (body language) and tonal cues … think of it like this: imagine walking up to a friend and saying “Hey! You’re a fucking asshole!” and as you say it you’re grinning and have a joking tone in your voice … now go up to some belligerent drunk in a bar and yelling “Hey!!! You’re a fucking asshole!!!” … same words, two different meanings. Now, was she saying “you’re not my people” or was she saying “you’re not my people”

              What was the principled stand for gay rights? Was it the DADT military recruiters thing?

              Let me ask you this: was it a stand for gay rights? Or was it upholding her administrative duty? If it was truly a stand for gay rights (for all) why didn’t she take it a step farther and take up the issue with Congress? What’s she done to get the debate on gay marriage to go forward? Or any of the other gay rights issues?

              What about women’s issues?

              What did she do for equal pay? Choice? Battered women’s issues? Homeless women? Has she ever worked in a shelter? What’s she done to help poor women get better access to health care? How has she made women’s lives better (other than her own)?

              She must be a brilliant lawyer, right? What kind of pro bono work has she done?

              See, my thing is, I don’t care if she’s been a judge or not. I just want to know what kind of life experience she has and what she’s done for others


              1) What does she believe? 2) And how has she implemented those beliefs into practice?

  49. scathew says:

    All we need is another f-ing Ivy League brat in government. What like there’s no one from say the University of Minnesota or something who can run this country?

    Both left and right are a bunch of snobs on this line and as far as I can see the Ivy Leagers have screwed up this country so much we should be using it as a litmus to not allow them in office.

    I’m tired of it. It’s like if you don’t come from Harvard or Yale you don’t exist. They’re all a bunch of elitists!

      • DWBartoo says:

        Wall Street, as well.

        Yeppers, the poison ivy leaguers certainly are doing a lot of God’s work’

        It is said that Harvard graduates contributed much to the “development” of Hawaii, they “… went to do good, and did very well, indeed.”


    • DWBartoo says:

      Just so you know, scathew, while I agree with (and share) much of your sentiment, not everyone who attended Harvard or Yale is a rich, sniveling thug or thuggette.

      Why, I even know one or two who are halfway decent and, possibly, even honorable …


      • earlofhuntingdon says:

        As with Oxbridge, the Ivies are covered in both the green leaves of those who worked hard and achieved much to be there, and the vines and suckers of its legacies. The issue isn’t talent, though, it’s to what purpose will Ms. Kagan and other over-achievers put it.

        • DWBartoo says:

          T’is never the talent, EOH, just the “connections” which matter, for breeding and for maintaining proper “control”.

          Many clever skulls and “fine” bones are devoted to little else.


  50. earlofhuntingdon says:

    It is a strawman to suggest that Ms. Kagan would be a David Addington or Liz Cheney on the Supreme Court. The issue is what sort of nominee should we expect from a Democratic president sitting on Democratic majorities in both houses of Congress (thus limiting the scope of obstructionism by a normal opposition party).

    Ms. Kagan’s hiring practices as SG, are much more diverse than her hiring as Dean of HLS. The DoJ is subject to different rules, visibility and oversight than a private university. At HLS, where she had more control, she appeased the right, during a Republican presidency and with a Goldman Sachs university president, and annoyed the left. But right and left would have been happy that the faculty’s resources were increased and that its net size increased by 25%.

    The attributes, more precisely, the aspirations, of the American form of government were imperiled by the CheneyBush response to 9/11, by earlier fits of corporate deregulation and by a Congress that fell in love with slumber and greed rather than oversight. It took little courage to write a single letter to a member of Congress and mail it from Cambridge, MA.

    How easy it is to confuse error with malice. Harvard’s endowment plunged in value as its GS president empowered its endowment trustees to “enhance risk”. Greenwald’s point remains valid: when it came to a conflict between money and her university president on the one hand and her principles on another, she went along and didn’t make waves, much as Obama does in Washington now. It is not apparent that she advocated for any other course but the one Summers wanted; signing amicus briefs along with dozens of other law school deans requires little courage.

    The more relevant budget number, which Greenwald discussed in an earlier piece, was that the US government played hardball by threatening 15% of all of Harvard’s annual operating budget. That large an amount would have been mutually, not asymmetrically destructive. They key issue is Summers’ edict and Kagan’s cooperation, without apparent civil disobedience.

    Ms. Kagan has many competencies. That Mr. Obama could have chosen others more qualified than she is, who have more directly relevant professional and personal experience than she does, seems beyond question. He didn’t.

    • waitomo says:

      With Glenn, it’s not hard to confuse error with malice. He’s well-known for his petty, demeaning and degrading responses to those who disagree with him. The malice is all his. As are the errors. And the omissions. And the inconsistencies. And enough strawmen to fight every crow on the planet.

      And to hear them from someone like Greenwald, who admittedly didn’t even follow politics (and their ensuing policies) until well into 2002, it’s pretty tough to take at times.

      Just to note on the strawmen, Greenwald did link Addington (and Yoo) with Kagan today on Democracy Now.

      But I apologize to bmaz, now I am hijacking this thread. Sorry. And now I have to get some rest!

      • earlofhuntingdon says:

        With Glenn, it’s not hard to confuse error with malice. He’s well-known for his petty, demeaning and degrading responses to those who disagree with him.

        Confusing the two is itself an error. The comment suggests your bias more than Greenwald’s

        Greenwald’s comments today regarding Addington and Miers were neither nefarious nor incorrect. As for the claim that he didn’t follow politics until about 2002, that could be said of most of the White House press corpse. Most of them don’t follow it now.

        Greenwald’s having specialized in successful First Amendment litigation in NYC does suggest that he followed at least the politics of the courts regarding interpretations of our most hotly debated civil rights.

        • waitomo says:

          You’re right. I am biased against Greenwald. Then again, I’m generally biased against people who use canards to smear others.

          As to Greenwald following politics, I suggest you read the preface to his first book. There’s a link to a PDF of the preface here:


          And after reading it, consider that he’s 43, not 23. In other words, he seems to have missed the excesses of the Reagan-Bush-Clinton (and early Dubya) years. All of which, needless to say, contributed mightily to what we face today.

          I once again apologize to bmaz for hijacking. Although in fairness to me, bmaz does cite Glenn Greenwald prominently. Still, it’s a side topic better explored in another thread. Although that thread will likely never appear if no one raises it.

          Just how does one become a blogger at FDL? Or Kos? I’m serious. bmaz?

          • bobschacht says:

            You can write your own blog post at The Seminal. Look for the link in the banner at the top of this page.

            Be warned, however, to stick to facts and evidence rather than hyperbolic flaming opinions. There are a lot of Greenwald fans around here, and I’m one of them.

            Bob in AZ

            • waitomo says:

              Thanks, Bob. I’ll look into that.

              And just so you know, I used to be a fan of Greenwald until, in my opinion, he went off the rails.

              Seriously, in the span of what I’ll roughly assume is about 10 hours (after his appearance on Maddow), he managed to post two voluminous columns. Combined they total over 3,000 words. And that doesn’t even count the content in the links.

              When I discuss Greenwald, I really try to stick to the facts. When he doesn’t like what I write (or others who try to debate with him), he often resorts to petty, demeaning insults. Everyone does that to some extent but Glenn appears to be particularly gleeful when doing it. And in my case, he flat-out lied about something I wrote. When I called him on it, he went silent. Lately, he’s simply deleted two of my posts.

              When I first encountered THAT Greenwald, is when I began to question his bona fides as a serious commentator willing to discuss issues honestly and substantively.

              It’s not a great secret on the interblogwebs about his Jekyll/Hyde nature. And when you repeatedly engage in that type of behavior, it starts to turn people off to what you’re saying. And when you lie… well, that’s the final nail in the coffin.

              Just listen to Lawrence Lessig on Maddow last night. He praised Glenn and then substantively called him out. Glenn — as if anyone was surprised — replied today with one of his patented lengthy broadsides. After all, Lessig got the last word on national television.

              Here are Glenn and Lessig on Maddow:



              And what’s interesting about Glenn’s appearance before Lessig, he leads off with the same trope about Kagan being a “blank slate,” even though he’d written about Kagan’s substantive thoughts on detainees before he went on the show. The intellectually honest thing to do would have been to acknowledge that there are issues out there which she’s addressed instead of issuing his “blank slate” spiel, which at that point he clearly knew was untrue. But that’s Glenn. He can’t help himself.

              But enough of this. I actually have work to do… LOL.

              Thanks, again, Bob! If I do it, I’ll try to be as factual and persuasive as possible.


  51. earlofhuntingdon says:

    That Ms. Kagan was not appointed to the DC Circuit in 1999 – owing to an act of political partisanship and obstructionism by a Senator still eminently capable of more of it – is only one circumstance in her 20-year career.

    Ms. Kagan could have acted differently throughout her professional life, disclosing her experiences and advocating her values more vigorously and passionately. It was an active choice not to, one of the many things Mr. Obama most likes about her.

    • oldgold says:

      This is true, but not necessarily disqualifying.

      Clearly, she has played the game well. There is much to admire and
      to be concerned about in that.

  52. treadlightly says:

    The absolute truth? Well, absolutely your opinion anyway. This is the kind of hyperbolic crap I expect from the Right.

    Given who Obama is, Kagan is exactly what I would expect. She would not make it onto my longest of long lists, but she is qualified. Remember, the Constitution sets out the qualifications for SCOTUS justices, and gives the president the job of selecting justices (with advice and consent of the Senate).

    Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas.

    This goes way beyond hyperbole into sheer stupidity. Jeebus, why not call her the anti-Christ?

    If we had a better president, we would get better appointments. I seriously doubt that I will vote for Obama in 2012. He has some excellent qualities, made all the more glowing when compared to the dimwit he succeeded, but his failings are too serious for me to excuse. Still, my disappointment with Obama is not going to make me resort to the kind of absurdist nonsense you have written here.

    • bmaz says:

      I studied the justices very carefully; there is not a one who had anything remotely close to the lack of experience as either an active lawyer, sitting judge or, in Kagan’s case, both. Elena Kagan stands completely alone in the history of Supreme Court Justices in this regard. It is not hyperbole; it is fact. While that is certainly not the only essential element necessary for a Supreme Court justice, I do believe it is a necessary element and she falls woefully short. I do have other issues, but it is harder to judge her on those with the absence of a better record on them; I assume she will end up being quite good on some, not so much on others – much like any justice. I would never in a million years have picked her, but those other grounds to me are troubling, but not disqualifying. The lack of any knowledge and/or experience as a participant in the court system (save for six appellate arguments in the last few months) Is a disqualifier for me. Others may differ.

  53. earlofhuntingdon says:

    Your criticism of Greenwald applies more to your comment than to him. His comments about Kagan being a blank slate were the substance of his column, not inconsistent with them. Others agree with him, from David Brooks, to the NYT editorial page, to political and legal bloggers from the left and right. As for the rest, I’ll have to look up the difference between trope and tripe.

  54. bobschacht says:

    Late driveby– Anyone else catch the Nina Totenberg piece on Morning Edition today?

    Kagan’s Positions On Hot-Button Issues In Spotlight, by Nina Totenberg

    She looked at two main issues:
    Her Position On Guantanamo, and
    Don’t Ask, Don’t Tell

    I thought the first segment was more interesting. Here’s her conclusion:

    The letter all but assures that Kagan will get a grilling on national security questions involving presidential power. That is particularly ironic since liberal and human rights activists have been critical of Kagan for defending what they view as the “Bush-lite” positions taken by the Obama administration in issues related to the war on terrorism.

    Bob in AZ

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