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Why Kagan?


Obama is lives and breaths identity politics. It’s not hard to see why he’d pick a woman or even a lesbian for that matter. Both are great identity go getters. He throws a bone to both the NOW crowd and to the Gay/Lesbian crown (He still hasn’t done anything about DADT, how long ago was it that he promised to do something about it?), hoping to get their support for the upcoming election.

Liberals will defend Obama’s pick, because it comes from the One. For most, He can do no wrong, and therefore his pick is gold! For proof, look no further than Matt Yglasias’ (always a Democratic tool) asinine comment on twitter.

Argument will be simple: Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama

Nothing about Constitutional views, the role of the judiciary or anything of substance. But that’s the most appealing thing about Kagan for Obama, her lack of record to pin her down too. If there was ever a SCOTUS pick that told more about the POTUS than this one…!!!

So why didn’t Obama pick Diane Wood?

The best case for Wood was made by Glenn Greenwald. I personally detest the whole notion that the Court needs “diversity”, “consensus building” or that “moving the Court to the Right” is a bad thing. Those are more ideological disagreements more than anything. In fact, that Greenwald dislikes the Kagan pick, is a point for her somewhat, in my book. Yet, from a Left standpoint, Wood would have been and is a better pick. Of course there is her nasty habit of promoting individual civil rights over the will of the State (a Classical Liberal view that I wish more Democrats still stuck too). Obama couldn’t have that now could he? Again, I think Glenn Greenwald hits closest to the mark.

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

When it comes down to it though, no one know why except for Obama. I can’t help but think that there is something in it for him personally. The man is too full of ego and arrogance to do anything that doesn’t make him look good. Are the bones thrown to the GLBT community enough? Part of me can’t help but reflexivly not like her, the opposite of Yglasias’ arguemnt, I don’t trust Obama. The other part of me is optimisitic that Obama isn’t as smart or clever as he thinks he is.

I’m hoping Stevens’ replacement pick will come back to bite Obama. Stevens was picked by Ford but turned out to be one of the most Liberal justices on the Court. Remember Stevens gave the majority opinion on Kelo vs New Haven. Kagan’s comment on Gay Marriage and her record on workplace diversity while at Harvard, give me some hope that maybe Kagan isn’t all that Liberal. While I support Gay Marriage, I definitly don’t support the racial quota system in place. But since, those two issues will no doubt give Democrats pause, give Kagan another point in my book.

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Categories: SCOTUS
  1. kenoshamarge
    May 11, 2010 at 06:58

    Why Kagan? Because she is a safe choice. The right will not be able to raise too much of a fuss because there isn’t much to fuss about. She is also a member of the Harvard-Yale bunch that rules everything in this country. What’s not to like?

    The kind of “diversity” that I favor hasn’t much to do with gender or race. It’s a diversity of “thought”. I don’t expect we’ll see that from Kagan.

    But the left and the feminists that want so desperately to believe that the Dems care about their issues will be happy with the selection of a woman. No doubt a brilliant woman. Because all those Harvard-Yale types are always touted as brilliant unlike the peasantry that they rule.

    • May 12, 2010 at 19:52

      I agree she is the safe choice. He can’t have a big confirmation fight right before the election. That will slaughter the rest of the Dems. Also, the Obamacare case, especially the Florida case is set for right before the election. So that’s something to consider.

      That and the identity politics thing are a lot but I think there has to be something more. I just can’t put my finger on it.

      The Harvard-Yale types are going to get their due soon. I know those two places mean jack shit, but the public at large still has the (I think) misconception that they have to be brilliant to go there. Well not all true, you have to have money but smarts…I don’t think so…go back and look at the grade inflation graph again if you have any doubt. Think about this….Obama is a product of Harvard, and his comments on Constitutionality are nonsensical and just down right bad. It would be funny, if he weren’t able to pick SCOTUS justices. =\

      • kenoshamarge
        May 14, 2010 at 06:18

        I sure hope you are right about the “Harvard-Yale types getting their due soon.

        I hope so because I think there is a “kind” of group think coming from that direction as well as an arrogance in their belief that “they” simply by virtue of where they went to college are superior to all others.

        Those too arrogant to listen are too arogant to learn. JMO.

        • May 25, 2010 at 19:15

          Well I hope Im right too. But as long as we keep giving them the reins of power, nothing will change. We really need to get people to stop automatically equating Ivy League with Intellect, because they often don’t go to together. I think that’s why the Ivy Leaguers and their followers went after Palin so hard. Because she wasn’t part of the Ivy Elite establishment. They tried with McCain, but he got off due to going to an Academy, they really couldn’t publicly show how much contempt they had for the Academies, that would have stirred up a hornets nest.

  2. yttik
    May 11, 2010 at 08:54

    It’s kind of funny, the best “liberal” justices are usually appointed by Republicans. O’conner, Souter, Stevens.

    I am bothered by the way we talk about how we must move the court to the left or right. The law is not left or right, the Constitution is not left or right. Somebody told me yesterday that I hope she rules favorably for liberal causes. Does anybody care about ruling favorably for the law? No.

    • May 12, 2010 at 20:11

      My ideal justice would be Oliver Wendall Holmes.
      “I have no respect for the passion of equality, which seems to me merely idealizing envy.”
      “We should be eternally vigilant against attempts to check the expression of opinions that we loathe.”
      “I loathed most of the things in favor of which I decided.”
      How he voted for “the right of an ass to drool about proletarian dictatorship.”

      Simply put, Justice is blind. Justices shouldn’t let personal feeling cloud their judgment on matters concerning the Law.

  3. bluhawkk
    May 11, 2010 at 10:27

    I’m confused. Her buddy Walter Dellinger in Slate writes that Greenwald’s critique is defective and that Kagan is critical of expanding executive powers. Was that just a Bush-Cheney thing?
    http://www.slate.com/id/2251138

    • May 12, 2010 at 20:26

      From what I understand it to be, and I’m no legal expert or claim to know a whole lot about it, Kagan is in favor of executive authority as long as Congress hasn’t deemed it improper. Kind of like how if they don’t explicitly say you can’t do it, then you can do it. That kind of reasoning is what gave Bush the authority to do what he did, and what gives Obama the authority to keep doing what he does. It’s the unitary executive theory, Kagan is in favor of a strong UET. As I said above, Bush was also a strong UET, so is Obama.

      I don’t buy her argument that Clinton’s use of the UET is good and the Bush/Reagan use of it is bad. I see that as just partisan politics. After all, Clinton instituted the program of “extraordinary rendition,” which among other things allowed the CIA to “torture by proxy.” I don’t see much of a difference in the use of executive power between that and Bush, but I know partisan Dems think there is a differene, mainly because of the Bush=Bad, Clinton=Good type of reasoning…which like Yglasias’ tweet, I think is asinine.

      http://en.wikipedia.org/wiki/Unitary_executive_theory
      http://en.wikipedia.org/wiki/Extraordinary_rendition_by_the_United_States

  4. kenoshamarge
    May 12, 2010 at 10:23

    I too believe that it should all be about the law. I certainly don’t think a Justice should be concerned with “empathy”. There is however, just enough wiggle room in many laws to make it possible for a Justice, or any Judge to “lean” one way or another. Even without “wiggle” room different people “interpret” law in different ways. I don’t want “activist” Judges from either side of the spectrum. But I doubt we’ll see that.

    Personally I have nothing against Kagan. I just would like to see more diversity on the court. Then there might be a better “balance” in those inevitable interpretations. JMO and I barely have enough knowledge of the law to allow myself to talk about this.

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