Look on the Bright Side!!!

I’ve thought of some bright sides regarding the news that Elana Kagan is Obama’s pick to replace Stevens:

  • If ever SCOTUS needs money, Elana Kagan is a great fundrasier!
  • Imagine how it’ll make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General.
  • Given that Republicans will try to oppose Kagan on perceived sexual orientation, it’ll make potential gay bashing of Vaughn Walker over the Prop 8 trial much less effective and–assuming Kagan is confirmed–potentially counter-productive for the haters.
  • Next time someone has to defend the material support statute before SCOTUS, she probably won’t go so far as saying even lawyers who defend those accused of terrorist related crimes materially support terrorism.
  • Girls. Three of them. On SCOTUS. Just two more to go and we’ll have our fair share.

Got a bright side to the Kagan nomination? Put it in comments.

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.

49 replies
  1. pmorlan says:

    The only good thing I can think of is that at least she’s not Cass Sunstein. There is no doubt that he would have been a pathetic justice. Because she is such a blank slate we at least have the “illusion” that she might be ok. At least that’s what the Obama cheerleaders at DU are relying on this morning to pump up this nomination.

    I’m so done with this administration.

    • DWBartoo says:

      Oh noes!

      Now you’ve done it, pmorian, you’ve mentioned THAT name …

      You’ll get Obama-rahma thinking …

      There ARE worse than Kagan (there must be, but let’s make Obama-rahma ferret them out, make ’em work’ make ’em sweat, let ’em have some tiny doubts dancing in their heads …)

      (Frankly, Sunstein is being “saved” for the most intellectual of thuggery, no mere SCOTUS seat for the Principle Architect of the Pax Obama and Bipartisan Hoopla, not to mention the compiler of the “Official U.S. History of Our Era: Looking Forward, Volume One” …)



  2. klynn says:


    EW, quick, we need another post.

    Although, the Cass point by pmorlan is quite the bright spot. In fact take no more Bright Side nominations. pmorlan wins a hubcap.

  3. DWBartoo says:

    A “fair share” … five girls.

    Hmm. Well, right (ahem!) now, we of the less fair (by far) sex are “represented” by eight boyz.

    Gotta tell ya, EW, it makes a difference what “motivates” a Justice. A simple set of “equipment”, one way or the other, ain’t no guarantee of much of anything. (It may just be me, but I don’t feel well-“represented” by the “guys” on the Court, at all …)

    The issue is hearts and minds.

    If they’ve got ’em, will they use ’em?

    Okay here’s the best that I can manage: At least it ain’t someone worse.

    (I suspect bmaz, if cajoled properly, might have a few suggestions as to the worser. Whether he should publicly announce such a list is a serious question, as Obama Co. would likely limit their future “picks” to that list …)


  4. Mary says:

    Well, one good thing is that with Kagan out and Katyal in, Obama will have a much more effective advocate for his Executive power and anti-Constitutional ideology. Wait – hmmm – I guess I’ve been trying for finding the “good things” about Dems since 2006 I may not really be able to differentiate a Democrat from a Republican good thing from a bad thing anymore.

    Ok, I’ve got one I think. “Next time someone has to defend the material support statute before SCOTUS” she’ll probably let them off the hook by joining in on a determinaton that SCOTUS has no power to hear cases involving the Exec Branch’s conduct of its “anti-terrorism” activities.

    Sorry – I’m really have trouble with good thing/bad thing.

    The hard thing is going to be losing all final respect for Leahy, watching him usher her through.

  5. harpie says:

    Something good about it?
    Sorry, not yet.
    Between Miranda and Elena,
    I can’t even say “good morning”.

  6. vastleft says:

    Obama True Believers will now be too embarrassed to insist that we must re-elect him so he can appoint real liberals to the Supreme Court.

    Just kidding.

  7. JThomason says:

    This is a plus: there appears to be no history of any on the ground brown-shirt electioneering, storming county election commissions, etc.

  8. pmorlan says:

    Mary, I wish you were wrong but unfortunately I believe you’re right about Leahy. I guess that’s a bonus for the Obama administration. They get to move the Court to the right and watch Senators like Leahy lose all credibility with their base. I believe they refer to that as adding insult to injury.

    I was just watching MSNBC and they let their viewers know that Elena Kagan was photographed wearing a judge’s robe and holding a gavel under a painting of Felix Frankfurter for her school’s yearbook photo. A wannabe Frankfurter?

  9. FrankProbst says:

    Re: Girls. Won’t this mean that ALL of the Democratic picks on the Supreme Court are women?

    I have to admit that I haven’t paid any attention to her views, so she’s even more of a blank slate to me than to everyone else here. That being said, I really like the optics of the pick. The Republican response to her is going to be brutal, and I can’t imagine any scenario in which they DON’T overreach. It’s just a matter of time until some Senator is sitting next to an open mike uttering the phrase “ball-busting bull dyke”. The teabaggers are going to say that, if Obama thought that he HAD to pick a woman for the spot, he should have chosen someone more qualified, like Sarah Palin. By the time the GOP is done, the only group that WON’T be disgusted with them is straight white men over the age of 65.

    • DWBartoo says:

      Now wait a danged minute, there, Frank …

      You mean to tell me that in two years time, I “WON’T” be “disgusted” with the GOP?

      I think I’m going to be sick.

      It’ll be some form of dementia, right? Gender-based insanity?

      Jeebus, whatever happened to free will?

      Tell ya what, Frank, I’m gonna write down my “mind” right here, on muh hand, with permanent ink, in BIG letters.

      I may lose my mind, but if I don’t lose my hand, and I can still read and comprehend …(“Hey! who wrote all over my hand? When did they do it? Must have been while I wuz sleepin’. Gawd I’m glad the ah, the um, oh yeah, I’m glad the party of Lincoln is lookin’ out for me and my billions … huh? wadda ya mean I ain’t got billions. Okay, millions, then. What? No millions? Damn! I wuz robbed, just y’all wait until I tell Ronnie Reagan, by holy jumpin je-hose-a-phat, he’ll trickle ya down …)

      Always look on the bright side (there is not enough light on the “other side” to see anything …).


      • DWBartoo says:

        Full disclosure.

        I am equal opportunity disgusted.

        The Dimocraps, despite being considered the “lesser weevils”, disgust me quite as much as the rethugs.

        Been that way for longer than I care to consider, at the moment.



        • Mary says:

          I’m beyond the lesser of evils anymore. Way too much “oh, sure, he’s/they’re doing/saying this/that to get elected, but just wait and see what happens in office” I’ve seen what Obama has done in office and it’s worse in a lot of ways than what Bush did, but with the same kind of cultish defense.

          • DWBartoo says:

            Yes, never “bought” the lesser weevil crap.

            Weevil is weevil.

            Well, you know Mary, “nine-eleven changed everything” (you can “believe” in).

            “Cultish” it is, the self-appointed “elite” that ole Leo Strass was “on” about.

            (What do you think of “chief” architect of the Patriot Act, Viet Dinh? Between Dinh and Yoo we have suffered a great deal at the hands of these well-trained lawyers of Asian heritage and the professors and law schools who turned then loose upon us. I imagine Leo would be proud, his “waltzers”, all of them, must be proud.)


            • b2020 says:

              But those were conservatives. These are *Democrits*, the only group that demonstrates comprehensive and consistent authority worship.

    • Mary says:

      The sad thing is that the Republican picks, including Roberts and Alito and even Miers, have been vastly more qualified than Kagan. That’s really sad, but true. The talking point about how you “have” to vote for a Democrat bc of the Sup Ct has pretty much gone out the window with the Kagan pick.

    • b2020 says:

      Yeah, sure. Like that McCain guy, his career was *ruined* after the Chelsea Clinton quip, right?

      You are talking a 40% flat hollow 6000 year old Earth audience here.

  10. Leen says:

    “If ever SCOTUS needs money, Elana Kagan is a great fundrasier!”
    They brought this up on Washington Journal this morning. How much money she raised at Harvard.

    Got in a damn strong plug for FDL and Emptywheel’s thread this morining on C Span’s Washington Journal. Talked about the lawyer folks here and EW’s well informed and researched views about the Kagan nomination and so many other issues. Hope it sends folks here

  11. BoxTurtle says:

    well, it’ll make life easier for the political cartoonists. They’ll be able to recycle all their Meiers cartoons.

    Boxturtle (Boss, I got three weeks of drawings on the spike. Phone me in Rio if you need me)

      • chrisc says:

        Hi bmaz,
        I lurk a lot mostly because I am usually late to the conversation.
        And I am a grandmother now.
        I’ve been spending quality time with the little one.
        She loves the ‘puter, but isn’t a big fan of progressive blogs.
        She prefers to watch videos of Jellyman Kelly, “Kickey” Mouse and Elmo’s Song.

  12. boltbrain says:

    Her seminal study in support of nearly unlimited constitutional authority for presidential power to increase, decrease, reorder or disorganize the executive branch adds significant legitimacy to past administrations as seemingly inconsistent as those of Franklin Roosevelt, Ronald Reagan and George W. Bush, and provides flexibility to future administrations to choose to approach governance through such transparency (via the congressionally-mandated oversight that attaches to subject-matter agencies) or opacity (via the executive privilege which applies to issue-centric White House ‘czars’) as the need (perceived or otherwise) arises.

    Her secondary study on accommodating the First Amendment within the contexts of formulating and executing on public policy provides an important ancillary tool to safeguard that flexibility.

    Otherwise, the state of her record as a writer of scholarly articles will reduce a persistent superficiality in requiring nominees to prove achievement.

    Dialog touching on her non-public personal expression of freedom may serve to expand the role of privacy in the core value of the pursuit of liberty.

    Her confirmation will reinforce the notion of the power provided for in article II, section 2 of the Constitution being, in the end, essentially prerogative.

    The state of her record as a litigator will help counter the nation’s irrational fascination with winners.

      • boltbrain says:

        Check the Oyez site: http://tiny.cc/xktc9

        It shows that she appeared in person before the Supreme Court and orally argued for the administration’s position on the Citizens United case.

        Adding the outcome in that case to the remainder of her record, that puts her at a win record of zero-for-one.

        To be sure, that is not exactly Sandy Koufax, nor even Losing Pitcher Mulcahy (http://tiny.cc/44xpf), but there are dozens if not hundreds at 0-1 whose records stand in mute defiance to the idea of it being technically nothing.

  13. Teddy Partridge says:

    The progressive Tiger Beat section of the Democratic party will be exposed for the Bushbot cheerleaders they really are.

  14. MrWhy says:

    She’s a bipartisan consensus builder. /s

    On the down side, there is no chance of having an openly gay nominee to the court. Pamela Karlan would have made for good TV.

  15. qweryous says:

    Hang on tight it’s going to be a wild ride!

    Attorney client privilege rears up and enters this fray wrt to Kagan and her work for the Clinton administration; the Senate Republicans will push to get all the details (Whi**Wat*r, Vin** Fo**er).

    The push will go straight to the Supreme Court ( ala Bush 2000); in a ‘bipartisan outreach’ the current administration will cooperate with bypassing the unnecessarily delaying lower courts in a ‘bipartisan effort’ to get the ‘bipartisan Court progress’ going ASAP. Most Senate Republicans will go along with this.

    SCOTUSblog :

    “Kagan already made extensive disclosures of her finances, writings and speeches when she went through the confirmation process for solicitor general, the blog says. Nothing very substantial surfaced. The only significant information yet to be mined would come from files from the Clinton administration where Kagan was a lawyer in the White House counsel’s office and a domestic policy official.

    It’s unclear how many of the materials will be withheld under claims of attorney-client privilege, the blog says. In any event, the administration has already had ample time to check those files for smoking guns.

    There may be some on the other side of the aisle with the need to see for themselves rather than to trust this administration- and so straight to the SCOTUS with this dispute.

    Decision in hand the nominee will be questioned about the revelations…but unforseen blunder (or carefully laid trap)… the Supreme Court decision just issued will remove the immunity fig leaf from the John Yoo and Alberto Gonzales lawyering performed for the previous administration.

    The two race to be the first to cooperate, each carrying the CYA materials they had retained . Moving quickly to settle old scores Pete Hoekstra, Larry Craig and John Ensign begin to read aloud on the floor, and well…

    Faced with the evidence, the Obama administration decides better to prosecute those guys rather than BP; and the indictments begin.

    I’m reluctant to use these words, but the request was made: “Got a bright side to the Kagan nomination?” and these words should not be used carelessly, but: multi dimensional chess operations may be underway, and the current nominee to SCOTUS may be involved! (And if the previous nominee is involved, then the whole court may be waiting for the signal)!

    The nomination may be a carefully calculated effort!

    Entirely entertaining link: 7th Circuit Warns of Dangers of Computers and Tequila, But Gives E-Filer a Pass

    “The 7th Circuit gave Moran a pass, saying there are bound to be mistakes as lawyers become accustomed to e-filing. But in a warning to other e-filers, the court referred to a “not so old adage” quoted in another opinion: “A computer lets you make more mistakes faster than any invention in human history—with the possible exceptions of handguns and tequila.”

    • boltbrain says:

      Perhaps it’s a lack of sufficient imagination to understand what you are driving at, but are you suggesting that the nomination of Elena Kagan is some sort of sacrificial lamb actually aimed at reducing the reach of executive privilege and congressional protections? If so, I have been thinking that the notion of President Obama possibly engaging in “11 dimensional chess” at least had the support of theoretical physics.

  16. MrWhy says:

    We’ll hear the phrase

    When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.

    ad nauseam occasionally.

  17. JohnLopresti says:

    I support the geographical distribution element in bringing a person who was employed in Cambridge, MA, to the US supreme court. If I could have figured out how to work part time while attending that college, I would have jumped over the Charles River and left my good school in the dust of the past. These are personal reasons I would support her nomination. There was a New England quality about George Bush Sr. which was lacking in George Bushco Jr the TXan. I hope Kagan brings a cultivated intellectual habit to a court which very much needs it. I think, in some measure, ew, having experienced the metro ambience, will appreciate the geographic factors I mention. All this may have scant relevancy to the abstract of Kagan*s qualifications, but I preserve a hope her addition will enhance dialog on that bench. Given the preponderance of Harvard graduates on Scotus, perhaps her record as leader of the university will help the other justices to afford her an extra modicum of respect. Traveling further along this mode of praise for the Kagan that might be, I would hope her aesthetic and linguistic sensibilities could inform counterargument against such specious popularisms as Roberts* dissent single entendre rendering of an existential couplet by a public songwriter in re Sprint Communications v APPC 07-552(opinion June 23, 2008) at p.4 of Roberts* dissent, p 36/51 in slip opinion. I refer to Roberts* first forray into nonstanding Alitoism, the passage following this sentence: **The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing.** Where Roberts goes with this thought is to cite a popular musician from the sixties. I would like to know what Kagan thinks of the kind of telco protectionism evident in that dissent, as informed by her knowledge of popular music, and its multiple ways of being understood, much like well written literature. The Scotus bench could benefit from someone who knows music and literature. I suspect that fundraising events for Harvard*s endowment require understanding these matters in a way deeper than evident in that dissent loc. cit.

  18. MrWhy says:

    In my lifetime, I expect to see three, four, perhaps even more women on the high court bench, women not shaped from the same mold, but of different complexions.

    We should remind Obama of this when the next opportunity for a nomination comes up.

  19. Becca says:

    Bright side? Okay…

    She’s not John Roberts, and as a 50 year old female might actually outlive him.

    Hard to say what else.

  20. prostratedragon says:

    I find myself genuflecting in all eleven dimensions. (Love your use of exclamation points, EW!8)

  21. spanishinquisition says:


    I doubt that Obama is going to prosecute people from the Bush administration because I think he’s guilty of the same things. I think Obama figures by protecting Bush after Bush left office that Obama is protecting himself for when he leaves office.

  22. JohnLopresti says:

    revising my @33, dean HarvardCollege.

    Joining harpie comment @38, garden is looking better all the time.

    On support of Kagan, NAron has a comment on Blog of Legal times.

    Further ellucidating Kagan support, a Biden aide*s review of government shared mutual experiences is also available at BLT.

    Additionally, prof MTushnet 2 months ago published in UPennJourConstitLaw 100KB an interesting unitExec theory paper relying on research by Kagan; which MTushnet has referenced in comments yesterday regarding the importance of examining constructs such as independent agencies, executive branch agencies and czars on balkinization, as accidents+ of modern political state function.
    +term used in philosophical sense.

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