Release the Kagan!
By First Ringer
The mystery, wrapped in an enigma, smothered in secret sauce that has been Elena Kagan might be granted a little more clarifying light with the release of her Princeton and Oxford theses:
The White House says it soon will release two theses Supreme Court nominee Elena Kagan wrote while attending Princeton and Oxford — ending a game of cat-and-mouse that erupted on the Web after Princeton asked a conservative website to remove her thesis for copyright reasons.
Some conservative critics contend that Kagan’s 1981 Princeton thesis — called “To the Final Conflict: Socialism in New York City, 1900-1933” — shows Kagan’s allegiance to, or at the very least her affinity for radicalism, a notion Kagan’s supporters reject.
Kagan is most certainly not Sonia Sotomeyor, attempting to backtrack decades of decisions and pronoucements by hewing to the time-honored tradition of most SCOTUS nominees of sharing their opinions as loudly as Marcel Marceau before the Senate. Rather, Kagan’s limited experience and record paint a picture as clear as a rorschach. Kagan has both denounced “don’t ask, don’t tell” and stated that “there is no federal constitutional right to same-sex marriage.” She’s been described as a strong Democrat and has given judicial cover to indefinite detention of terrorists.
Are these and other policies inherently contradictory? No, but politics (like all other forms of power) abhors a vacuum and Kagan’s meteoric rise may as well have been designed by Bissell. Even her academic allies found her lack of publication worrisome.
It’s hard not to feel that Kagan’s nomination represents the crossing of a sort of judicial Rubicon into a valley of nominees from either party that remain as hard to philosophically decipher as hieroglyphics without the Rosetta’s Stone. The results are proxy debates. Kagan’s sexuality becomes a tittering talking point instead of debating the judicial politics of marriage. Her 30-year old senior thesis is mined by political prospectors who unearth pyrrha and claim it to be ideological gold in substitution for any judicial record.
The comparison with the man who nominated her is obvious and has been made by many others. But perhaps the true connection Elena Kagan shares with Barack Obama is the triumph of the mediocre; the teaching of the unintended lession that keeping your head down, not publishing anything of note (whether at Harvard or Princeton), and agreeing for the sake of agreement can take you further than an educated expression of your values or views.
Such viriginal purity can only be obtained by staying away from dirty reality that contains failure, compromise and controversy. Perhaps in this case people ought to hope that Kagan’s confirmation hearings show a little “dirt.”
This entry was posted by by First Ringer on Tuesday, May 18th, 2010 at 9:06 am and is filed under Capitalism v Socialism, First Ringer, SCOTUS. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
May 18th, 2010 at 9:46 am
I find this sense of apprehension about Kagan’s candidacy amusing.
Given that what are considered four of the five most conservative justices in the entire history of the SCOTUS are sitting on the bench today (www.usnews.com/articles/news/national/2008/05/12/ranking-the-politics-of-supreme-court-justices.html, among others) and are arguably conservative activist justices to boot — despite that conservative boogeyman, activist judges.
The article references a study, done by Obama colleagues, Posner and Landes (Posner is another one of those senior lecturer professors who is also a full time judge Appellate judge, and considered by some to be one of the leading jurists in this country) “Rational Judicial Behavior: A Statistical Study”.
Kagan will have an interesting challenge to even bring the current SCOTUS back into anything resembling a balance.
I wonder if anyone is going to keep in mind that people mature and change as they continue in life after their early academic days — as Mitch is so fond of pointing out.
But thanks, First Ring, for working in a paraphrase of Penigma’s title in your opening statement……..I think………
May 18th, 2010 at 10:05 am
She may be no Ruth Ginsberg, but Obama picked a 50 year old liberal to make liberal decisions for the next 30-35 years.
Dog…you say you want to bring hte SCOTUS back into balance? A liberals idea of judicial balance is one where saying “Merry Christmas” is illegal, but lap dances are protected by the first amendment.
May 18th, 2010 at 10:42 am
apprehension about Kagan’s candidacy amusing
And Kagan’s judicial experience is exactly what? Pray tell! Would you let a car mechanic perform heart surgery?
Oh, Ruth Buzzy Ginzberg is such a modicum of balance!
May 18th, 2010 at 10:57 am
DG,
You’ve been using Pen’s double-dog-secret expert neighbors for sources again, haven’t you?
Given that what are considered four of the five most conservative justices in the entire history of the SCOTUS are sitting on the bench today (www.usnews.com/articles/news/national/2008/05/12/ranking-the-politics-of-supreme-court-justices.html,
You’re being misleading here: the USNews piece says they’re among the most conservative since FDR, and – this is particularly idiotic – equates “being appointed by Republican presidents” with “conservative”; the piece was from 2008, so it included David Souter as a “conservative”. Simply absurd.
among others)
Who?
What others?
and are arguably conservative activist justices to boot — despite that conservative boogeyman, activist judges.
Arguably?
Who’s arguing it? Better yet, give us an example of how you figure the Roberts court has been “activist”.
You can’t, because it’s not. Had it been “activist”, it would have ruled broadly on Heller; it did not.
Examples, please?
The article references a study, done by Obama colleagues, Posner and Landes (Posner is another one of those senior lecturer professors who is also a full time judge Appellate judge, and considered by some to be one of the leading jurists in this country)
“considered by” whom, and for what reason?
Kagan will have an interesting challenge to even bring the current SCOTUS back into anything resembling a balance.
I wonder if anyone is going to keep in mind that people mature and change as they continue in life after their early academic days — as Mitch is so fond of pointing out.
They can. It’s not a guarantee.
The media and the Dems’ meme machine is on full-time damage-control mode for its masters, of course; we’ve seen an avalanche of stories this week about how really really really balanced Kagan really is, really (which is why leftybloggers are writing about it now…)
May 18th, 2010 at 11:03 am
Actually, I’ve never met Pen’s neighbors, and no, I don’t use them for sources. In any case, Mitch, you know me better than that.
Here is another source, one of my favorite (I love their regular email updates – although factcheck.org has gone a step further with a weekly podcast elaborating on relevent topic fact checking)
politifact.com/truth-o-meter/article/2010/may/10/fact-check-elena-kagan
May 18th, 2010 at 11:03 am
Given that what are considered four of the five most conservative justices in the entire history of the SCOTUS are sitting on the bench today (www.usnews.com/articles/news/national/2008/05/12/ranking-the-politics-of-supreme-court-justices.html, among others)
Dog Gone, the Posner-Landes study goes back 70 years, not to the founding of the supreme court. The result is hardly surprising. Roosevelt’s picks were on the SC in 1940. In economic terms (not civil rights) the country is far to the right of where it was in 1940.
May 18th, 2010 at 11:06 am
Apprehension? She’d be replacing Kohn Paul Stevens, the most liberal member of the court. It’s a wash, and there is no apprehension. Just concern over qualification.
But by all means, go ahead and Bork her.
May 18th, 2010 at 11:30 am
Would you let a car mechanic perform heart surgery?
Not even close to an apt analogy.
May 18th, 2010 at 12:15 pm
Not even close to an apt analogy.
They both fix things.
May 18th, 2010 at 12:17 pm
Not even close to an apt analogy.
How about this: you wouldn’t let an insurance salesman rewrite the actuarial tables.
May 18th, 2010 at 12:32 pm
you wouldn’t let an insurance salesman rewrite the actuarial tables.
Heh, good one, Mitch.
May 18th, 2010 at 12:40 pm
Ha! Sour grapes cause you crazed wingnuts got nothing to use against soon-to-be Justice Kagan.
May 18th, 2010 at 12:58 pm
Yeah, angryclown thinks Harriet Kagan is the bomb!
May 18th, 2010 at 1:01 pm
BTW, excellent title!
May 18th, 2010 at 1:12 pm
Sour grapes? Replacing one liberal fool with another one is, as I said, a wash.
Meh.
May 18th, 2010 at 1:30 pm
It is pretty pathetic when the system we have nominates someone whose most defining statement of philosophy was a 30 year old senior thesis.
May 18th, 2010 at 2:57 pm
Well look at the trend. Napolitano, Eric Holder, Cass Sunstein, Robert Gibbs…
Incompetence is a requirement for this administration.
May 18th, 2010 at 5:09 pm
Dog Gone, do you know what the word bien-pensant means?
The reason I ask is that you seem to form opinions based reading Justin Ewers, a senior editor at US News & World report.
May 18th, 2010 at 6:52 pm
you wouldn’t let an insurance salesman rewrite the actuarial tables.
If insurance salesmen regularly end up writing actuarial tables, then maybe that’s apt.
Try “Letting a paramedic perform heart surgery.” That’s an apt simile.
Although that’s not even right. Judges come from lawyers. Kagan has all of the training needed to be a judge. She just isn’t one yet.
May 18th, 2010 at 8:38 pm
I hate to belabor this point (I really do!), but the USN&WR article Dog Gone links to is symptomatic of the liberal bias of our supposedly “mainstream” major media outlets.
I have not read the original Posner & Landes document that the USN&WR writer (Justin Ewers) based his piece on, but Ewers asks no questions about its metrics or its conclusions. It’s only purpose to him is to use it to confirm its readers liberal biases and to plant the fear in them that a McCain presidency would push the SC further to the right.
First there is, as Mitch mentions, the incredible (as in unbelievable) equating of Republican-appointed SC judges as conservative judges. Second, the metric used to determine whether a judge is a liberal or a conservative is very simple and so not particularly accurate for the general purpose that Ewers wants to use. Every pro-corporate vote is considered conservative, every pro civil rights vote is considered liberal.
Third, the timeline of the Posner& Landes study is skewed. Roosevelt’s SC was far, far more liberal than ones that preceded it (liberal in the sense that it okay’d expansive federal power over the states, individuals, and commerce). If the study had begun in, say, 1920 or 1900 rather than 1938 the results would have been very different.
Ewer wants to paint the current SC as extremely conservative in historical terms. It would be more accurate to paint the SC, 1938-to the Rehnquist court, as an anomalous liberal period in the court’s history.
May 19th, 2010 at 12:03 am
DS, if you look at the history of the SCOTUS, having many if not most members who weren’t judges but were things like politicians (e.g. Earl Warren) was actually the norm. In that sense Kagan is a throwback.
But by her own standard she should be in for a close examination and grilling since she has written no opinions, nor any substantive paper trail.
May 19th, 2010 at 1:08 pm
That’s fine. But saying she has no qualification, like a mechanic performing surgery, is wrong.
May 19th, 2010 at 2:56 pm
Didn’t say she has no qualifications. Indeed, the whole “Justices must be judges” thing is kinda new in the great scheme of things.
It’s just that the qualifications she does have aren’t either very impressive for anyone who plans to be other than a tool for the sitting Administration.
May 19th, 2010 at 2:57 pm
Ewer wants to paint the current SC as extremely conservative in historical terms.
If people were concerned with accuracy and context, there would be no liberal blogosphere.
May 19th, 2010 at 3:16 pm
DiscoStooge, please show me where I said “she has no qualification”
May 20th, 2010 at 5:06 pm
Just running with your poor analogy. The reason I wouldn’t let a car mechanic perform heart surgery is due to lack of qualification.
You were complaining about lack of experience. Is experience a qualification to be on SCOTUS? If not, why would you bring it up.
I don’t much care if Kagan ends up on the Court or not. I’d expect you guys won’t be happy with anyone left of Scalia, which is why I find it funny that you try and make reasoned arguments against Obama’s candidates. You won’t like anyone he picks, no matter their experience or “paper trail,” because you think they will be too liberal.
That’s not a wrong position to have, but be honest about it.