When Kagan Defenders Hurt Her Case

Greg Craig, who was ousted from the Obama Administration because he’s too much of a purist on archaic things like the Constitution, reassures us that Elena Kagan is largely a “progressive” in the mold of the guy who ousted him.

41 replies
  1. BoxTurtle says:

    Kagan is a done deal. Even Fox is doing semi-positive coverage of her. The GOPers are saying it could be a lot worse, the corporate Dems like her, and nobody listens to the progressives anyway.

    To paraphrase, the only way she’ll lose this one is if she gets caught in bed with a live girl or a dead boy.

    Boxturtle (Here’s a nice shiny tool for your toolkit, Mr. President)

      • BoxTurtle says:

        The NAACP seems to be quoting a lot of ObamaLLP talking points nearly verbatium.

        The NAACP is hoping Kagan will be their stealth judge. The see how BushCo used people with limited records and good dodging skills to get rabid conservatives on the court and they’d like to get a rabid liberal on the same way.

        A closer look at ObamaLLP’s actual actions would make them a lot less confident that Kagan will be liberal anything.

        Otoh, maybe Obama wanted a liberal except on the issues of executive power and detainee handling. And the NAACP was willing to compromise on those two points.

        Boxturtle (Remember, the power you give Obama will outlive Obama. Think President Beck)

    • emptywheel says:

      I absolutely agree she’s a done deal.

      But is she a done deal without being forced to explain her views, or is she a done deal with her views–which likely DO include fairly expansive executive power beliefs–public?

      Given that she may well tip the balance toward a new kind of presidency for some time, and with it fundamentally change balance of powers themselves, I think we ought to go into with full honesty about what’s happening.

      • DWBartoo says:

        One hopes that your third sentence may become a ubiquitous sentiment, EW.

        It has many useful applications.


  2. earlofhuntingdon says:

    Craig was remarkably unprepared. Greenwald was likely to be among those least in conflict with many of his views. For him to show up with such an empty hand as he played was gross incompetence or taking a dive; my vote is incompetence.

    If Craig showed up at a divorce hearing that well prepared, neither he nor his client would walk away with their tie or shoelaces intact, let with half the assets and debts that the law provides for. Thankfully, he restricts his practice to less weighty things, like national security and federal powers.

  3. JasonLeopold says:

    Love Craig’s definition of what a progressive is in the age of Obama. Good for Greenwald for putting those questions before Craig. Five or six law review articles, which is what Craig said, is quite thin. The way it came across to me is that Craig and others want everyone to know that Kagan is a good person and deserves the lifetime appointment.

      • Garrett says:

        Thin I don’t know. It’s a hundred fifty pages from someone that knows the subject.

        It’s wrong, on policy advantage, in my opinion. But it’s a good and important read about the issue.

        • bmaz says:

          Yes, it is nice Kagan was able to withstand the strain of producing one significant article in her decades long career. What a gal.

          • earlofhuntingdon says:

            It’s not like she wrote a course-defining textbook or a dozen or more well-received law review articles, the route to tenure taken by many faculty at prestigious schools. The disconnect between the lack of a published output and her rapid ascent is hard to fathom. It suggests administration, not teaching, was always her priority. Her presence, the way she must reassure the most powerful people in the room, must be considerable. But that skill will not promote liberal or even centrist views on a court of last resort dominated by its right wing.

            • bmaz says:

              I will say this much, it IS a substantial and substantive article that is well done and extremely thorough; it is rightfully considered an important work in the area. I very much do not agree with Kagan’s view of malleable use of administrative power to suit the political whims of the executive. While clearly any administration puts its own imprint on the administrative agencies and process, Kagan’s view is excessive and dismissive of base inherent duties of the individual agencies to my eye. If she had a CV full of such important articles, she might would earn the plaudits her friends constantly shower her with; however, beyond this article and one other much lesser one, there is really nothing. A couple of book reviews that could basically be intros to FDL Book Salons. Trust me, it is not that hard to write those and it is not indicative of any genius.

          • Garrett says:

            Her Nondelegation Backflip with One and a Half Twist, in support of delegation, is impressive, or least brazen. Ability to pull off a maneuver like that, in favor of the president, is nearly an essential qualification these days. She performs other maneuvers like it in the paper.

            • bmaz says:

              Heh heh, yeah, a very apt description. It is an increasingly significant area of the law that will likely come before the court with more and more frequency with all the regulatory crises recently suffered and that still loom on the horizon (can you say healthcare reform issues). From this article’s emphasis and tenor, I sure do not look forward to Kagan being there.

    • earlofhuntingdon says:

      Being a “good person” might be enough to let them join your club. It’s not enough to let them be a judge in the court of last resort over you and what you cherish.

      Intellectual excellence and superlative professional accomplishments are the minimum price of entry. More than that, more than the lowest common denominator of also being a good person should be required. One thing that’s needed is the disclosure of her views. Obama knows them; her closest colleagues, admirers and opponents know them. The Senate should help her make them known to the audience over whom her decisions will become law for the next several decades.

  4. phred says:

    “She is largely a progressive in the mold of Obama himself” – Greg Craig.

    That should become the new operative definition of an oxymoron: a progressive in the mold of Obama.

    I don’t think Craig has the same dictionary that I do.

  5. klynn says:

    Glenn was a breath of fresh air during that round table as he pushed for cited specifics on the issues while others spoke in general platitudes.

    Loved how he pulled in Obama’s past expectations of nominees to the court.

    EoH @2, totally agree with your review of Craig.

  6. Neil says:

    Craig may have given progressives the best rallying cry to date:

    “She is largely a progressive in the mold of Obama himself”

    OMG she’s less progressive than Obama and will more readily sell out her principles for compromise. UGH.

    I hope real progressives figure out how to question her on all of the important issues and get answers. I do not want to see us buy a pig in a poke, even if ending up with the pig is a fait accompli . (…Oui métaphore un malheureux et peut-être irréfléchie.)

    Tortue-Boîte (Peut-on trouver du fait accompli sur le menu, par exemple, au Pied du Cuchon?

    • phred says:

      Agreed, but do we have any progressives on the SJC to take up that rallying cry? Alas, not that I have seen.

      It is heartbreaking that conservatives demand so much more of their reps (a la Harriet Miers) than we do.

      It is disgraceful.

    • BoxTurtle says:

      I’m starting to wonder if this Miranda stuff is just being done so certain congresscritters can look good in front of the progressives.

      See, all the stuff ObamaLLP is asking to do they are alerady doing. You think they WON’T keep a prisoner in a hole with no judge or lawyer for as long as they please? They are already.

      They’re just not always successful in keeping such matter from coming in front of a real judge and they lose almost every time when that happens. They current policy is to delay all such cases as long as possible, preferably until after ObamaLLP is out of office. It’s working pretty well for them.

      I don’t think ObamaLLP reasonably expects the supremes to put additional leeway into Miranda. They simply expect to be able to waste a great deal of the court systems time, while at the same time putting on hold any cases they’re likely to lose until the matter is resolved.

      Obama is a decent lawyer. He’s made some decisions based on politics that make people question his legal knowledge, but those are separate things.

      Boxturtle (Though seeing how much he stole from Bush, perhaps he’s planning on using the idiot defense too)

      • bobschacht says:

        Boxturtle (Though seeing how much he stole from Bush, perhaps he’s planning on using the idiot defense too)

        I heard a guy on TV say something that rings true: Something to the effect that “Campaigns are based on differences; governing requires continuity,” or words to that effect. I would say that is especially true right after a change in administrations. However, I would expect more change in the second year, and I’m not seeing that.

        Bob in AZ

  7. Loo Hoo. says:

    Wow! What a great job Glenn did. He carried out an argument without shouting and going ballistic, and held Craig accountable. He also presented actual facts rather than ideology. It was obvious that he respected Craig, but at the same time was willing to challenge him. Really refreshing.

    I hope that he gets lots more invitations to weigh in on the issues on Sunday shows and weekly news shows.

    • watercarrier4diogenes says:

      He’s certainly gotten some ‘name recognition’ boosting face-time on Rachel Maddow’s show. When you watch them, along with appearances by Ezra Klein and Christopher Hayes, you begin to wonder how the ‘traditional media’ can continue to believe that we want to see David Gregory and Bob Schieffer (and Stephanopoulos is nearly their negative equal) muse and mumble instead of ask cogent questions and demand answers.

    • burnt says:

      You are correct; Mr. Greenwald did a fine job. He made Craig look like a tool or a fool take your pick. Still, it appears Kagan is a cinch. I agree with Greenwald’s blogging on her–i.e. she’s going to prove her pro-executive power bona fides soon enough.

      Since Greenwald was hammering Craig about specifics I’m going to offer a specific with respect to Kagan on which I’m sure she is with Obama. Obama vowed to filibuster FISA legislation during the primary season and then flipped when it was clear he was going to be the nominee. So, what do you suppose Kagan said with respect to warrantless wiretaps and retro-active telecom immunity when she was interviewed by the Obama administration prior to her nomination?

  8. Mary says:

    Dems have lost that final fear mongering rally call – that we have to vote for Democrats to protect the Supreme Court. To be honest, I could care less about how progressive Kagan is or isn’t on social policy issues.

    I care about the not having someone hand off torture powers to the Executive.

    The Dems aren’t willing, as either Senators themselves or via their advice and consent function, to even act seriously on the topic. Why would I feel any drive to make sure when get a Democrat elected, when all they offer is a Kagan? Hell, Alito is probably less reliably pro-torture than Kagan.

  9. JohnLopresti says:

    Has anyone seen a non-paywall copy of Kagan*s treatise on administrative law? Balkin wrote two articles about Kagan recently, much of the paired essays* themes addressing the way the senate judiciary committee has developed its vetting of supreme court nominees. Also at JB*s site, RPildes cross-posted his argument from a Federalist Society roundtable, in which he looks at the collegiality of Scotus much like a college department chair would view deploying and recruiting diverse talent.

  10. PJEvans says:

    My Usually-Unreliable Source thinks Kagan will be fine as a justice. (He thought Roberts would be great, too, which tells you a lot about how much he actually knows.)

    • earlofhuntingdon says:

      Scott Horton thought his former law firm partner, Michael Mukasey, would be a good Attorney General, too, because he knew him and thought he knew his professional views. He admitted he was abundantly in error about that judgment.

      Ms. Kagan’s forte, other than sheer facility of mind, is that she accommodates to the strongly held views of others superior to her in her local hierarchy in order to avoid either open conflict or conflict that could jeopardize her personal ambitions (given those, the two conflicts have much in common).

      Ms. Kagan has the intellectual capacity to perform well on the court. She has demonstrated that the elite that run this country consider her one of them, which makes her approval by the Senate likely. She has not demonstrated, however, the independence of judgment that I think is essential on this court or any court, especially not when the Justice she would replace is John Paul Stevens.

      On this Supreme Court, that untried independence, that tendency to quietly please the most powerful and vocal among her superiors, does not bode well for the protection of individual rights when they conflict with corporate or governmental assertions of rights, or for reining in an executive who would rather reign than govern.

  11. Hmmm says:

    Please pardon the OT — In re DWHorizon, 60 Minutes (of all organizations!) got a witness to tell that:

    The well was in the process of being closed with cement plugs when the blowout occurred. The day of the blowout, there was a disagreement between the Transocean supervisor and the BP supervisor over how that should be accomplished. The Transocean guy wanted to keep mud in the well (i.e., keep pressure in the well) during the cementing. The BP guy wanted the mud pulled from the well for cementing, because it was faster and they were already behind schedule. The BP guy won the argument. If pressure had been maintained in the well during the cementing operation, the blowout would not have occurred.

    Buried the lede there, huh? Writeup at Large Orange.

  12. bobschacht says:

    Did you see the news today that the Supremes just OK’d indefinite detention for sexual predators? I guess that’s a harbinger of what the Supremes will do to expand the category of “indefinitely detainable” cases. There should at least be an appeal process available for such people.

    Bob in AZ

    • Nell says:

      I’m horrified; I really expected the decision to go the other way.

      From the AP story:

      The high court on Monday reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

      The challenge was brought by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor.

      Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released. [emphasis added]

      Someone can be held indefinitely because there’s a risk of sexually violent conduct even if there is no history of sexually violent conduct? Unless we fight to get this repealed legislatively, it virtually guarantees indefinite prison terms for other crimes.

      Not to mention the body blow this decision deals to the judicial system generally; now, sentences mean nothing — Congress can just keep expanding detention for perceived risks and fears. Boogity boogity boogity in the dying empire…

      • geminorange says:

        Since the President of the United States favors indefinite detention and there are a sufficient number of sycophants in Congress to prevent any legislation from being considered, I do not see this happening soon.

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