The Progressive Question: Is Kagan Liberal Enough?

Is Kagan Liberal Enough?

In a word, no.
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This has been another episode of simple answers to simple questions.

Oddly, don’t think that giving people the authority to jail someone indefinitely without any particular rules of evidence should be a question of left vs right. The fact that Lessig and Greenwald are disagreeing leads me to conclude that my impression is correct.
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If we could stop insisting that every question be laid out on a sliding scale with only one dimension, we could actually begin to understand how we organize politically and stop thinking that our only choice is to play for only 1 of 2 teams. Note that I’m not holding my breath.

I swear if Obama walked on water, Greenwald would knock him for not being able to swim. Is a president not entitled to his OWN supreme court nominee? And how many times must we say this..if you wanted a liberal dem you should have nominated Mike Gravel or Dennis Kucinnich.

How many ways must Obama show he ain’t no liberal? No public option..Check. No closing of Gitmo…Check. Massive increase of troops in Afghanistan..Check. Stepped up drone attacks in Pakistan…Check. DADT..Still there.

Should I go on? It would almost be amusing if Greenwald, thought Obama picks who he wants and bam..they are on the court. There is this little thing called Confirmation, and even non-liberal Kagan only got 7 GOPers to confirm her as solicitor general. Sheesh.

Particularly troubling, especially for someone with no judicial record, is her hiring practices at Harvard Law. As a quartet of law professors writing in Salon pointed out last week, “When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor.”

Kagan herself will be something of an affirmative action appointee, but she sure didn’t care squat about giving a leg up to others who are underrepresented in the halls of power — oh, except for conservatives. She’s well-known for giving conservatives tenure-track jobs on the Harvard Law faculty.

To say I find Kagan underwhelming is an understatement.

The Constant Weader at http://www.RealityChex.com

Even those of us who agree with Obama’s positioning nevertheless have to recognize that Glenn’s performing a valuable service. One of the most harmful effects of political debate is when certain assumptions get locked in as something that “everybody knows.” In the meantime were actually engaging in a debate on whather we really need the fifth amendment to the Constitution anymore in light of recent developments. We need to be reminded often that civil liberties are not ‘natural’ and need to be actively defended if they are going to endure.

I don’t think any nominee by this President will satisfy the Progressives ala Glenn Greenwald. The chances of confirming a Greenwald supporting candidate will be very low. While Kagan might obtain confirmation as a “middle of the right nominee” she might become assertive once she gets on the bench.

The President wants a nominee who can be confirmed: it is a very straight forward political objective. Given the really burdensome problems he faces the last thing he needs is a drawn out tussle in what has turned out to the most awful Senate at the beginning of this century.

Anyway those of us who wanted this President to be a trail blazer in terms that will satisfy progressives know now that he is a cautious middle grounder. We read a lot of those cautionary posts during the run up to the election here in Swampland.

Paul, I understand your rationale. But can we at least giver her a chance to answer these questions? I am sure someone on the judicial committee will ask her..but why the rush to condemnation. Taylor Marsh, well known blogger, was saying the president is “on his own” when it comes to Kagan. Really? Knee-jerk responses from both sides is getting a little state. Is she too liberal? Is she too conservative?

I’ve always wondered what the word “liberal” meant to conservatives; now I wonder what it means to liberals. Does liberal = someone doing what you want them to when you want someone to do it?

Of course Kagan isn’t liberal enough. But why would that surprise anyone? Obama, whatever else he might be, is not a liberal.

Their influence has plainly reoriented constitutional law to ask…what is the answer that most faithfully applies the law of the different generations of our Framers…

Considering the nature of decisions made by the conservative majority of the SCOTUS, I don’t agree with that statement.

Certainly Douglas and Holmes didn’t feel themselves so constrained.

I’m thinking that Scalia, Roberts, etc. don’t either.

With all due respect to Lawrence Lessig, for the most part, “originalism” is simply a handy hook upon which the Right-wing SCOTUS justices may use to hang whatever decision they want to reach. Fortunately for Scalia, Thoma, Alito & Roberts, SCOTUS opinions (except from Scalia) do not contain snark-filled smackdowns of fellow justices.

For instance, when the Right-wing justices expanded the scope of the First Amendment in the Citizens United case*, Stevens did not unleash a blistering “where’s your original intent now, you hypocritical a-holes?”

*Not saying the case was wrongly decided, merely that it cannot be defended on “orginal intent” grounds.

You know what nfl, I consider myself more moderate than anything..but growing up listening to mainstream networks and being from the moderate state of Florida..I have always been suspicious of both extremes. Listening to Fox you would think liberals were Hitler worshipers who ate babies for brunch and listening to MSNBC you would think conservatives were Taliban style women oppressors who hated minorities.

I’m all for disagreement..and to a certain extent it forces the president to rethink his decision, something Bush would have benefited from. But to be so ideologically rigid that if someone doesn’t agree with you on one issue, you see no point to even hear them out..that’s not reality.

And can we just agree that Obama is by far the most caution president in recent memory. This man must really hate suprises

Yeah, well, he may get one in 2012.

MS: The link to Greenwald goes to Lessig.

I’d also add that Lessig, while certainly associated with “liberal” issues like net neutrality, was on the wrong side of the debate re: FISA’s retroactive immunity. He definitely does not share Greenwald’s concerns about the expansion of the power of the Executive, particularly with regard to domestic spying issues.

Thus, it would be a mistake to simply conclude that Lessig and Greenwald disagree about Kagan’s liberal bona fides. Rather they likely agree on the facts, but the facts bother Greenwald and don’t bother Lessig.

This is a very good thread, thanks to the commentary here.

But the argument that “no nominee would be liberal enough for [ Glenzilla | liberals | people who post on Swampland ] is kind of irrelevant.

Greenwald’s specific arguments, if I understood him, are (1) Kagan’s paper trail is too thin to really know her views and (2) on executive power, she may be rather too far to the right.

I’m particularly concerned about (2), although I don’t have the knowledge to make an intelligent judgment about Kagan.

Also: Strong checks on the executive branch is a conservative position (small c), although not a Republican one.

Thx tstar…reminds me of a mantra I created myself and have lived by for a while: “Between two diametrically opposed points of view lies, undisturbed, the truth.”

Kagan is, if anything, more liberal than Obama. He is remaking the country and the court in his image. Sound familiar?
I thought that SCJ’s were supposed to enforce and interpret the Constitution fairly and objectively and the law demands, not inject their political bias.

How do you know so definitively?

In theory yes. In practice no. The Supreme Court abandoned any pretense of impartiality long ago. It’s politics. Plain and simple.

What is “liberal enough”? And is liberality the only, or most important, measure, according to Greenwald? Is he applying a purity test?
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What if she’s not far left, but still ‘sufficiently liberal’ for most of Obama’s base *and* she has other strengths that might persuade, influence, charm, overwhelm, compel intellectually, bring over, whatever you want to term it, the only swing vote on the bench? What weight would you give that ability?

I thought that SCJ’s were supposed to enforce and interpret the Constitution fairly and objectively and the law demands, not inject their political bias.
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And how exactly will she “inject her political bias”?
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Moreover, how do you feel that the current eight justices are all guiltless of doing the same? Do you think Scalia reversed his decades-long opposition to federal judicial intervention in local elections and tossed aside his often-praised principle of stare decisis in Bush v. Gore on a whim? Or do you think maybe he injected his political bias there?

MS, have you heard anything from the WH about how many cases they expect she will have to recuse herself from?

Actually, no. I don’t think that Obama is cautious.
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Why would we all agree on that?

Perhaps you missed it but the question asked for, and received, an opinion. While I believe that Kagan is eminently qualified for the SC, she can hardly be called a liberal; certainly no more so than one could call Obama a liberal and maintain any sense of credibility. She is the nominee that I expected, not the one that I wanted.
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Since you appear to believe that Kagan is a liberal, feel free to substantiate that.

I’d give that ability the same weight I’d give it if it were possessed by someone who didn’t share a philosophy of US political-economy with liberals.
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The problem with the “sufficiently liberal” notion is that it presumes that someone who doesn’t actually subscribe to liberal concepts about the state’s role in our affairs can still be “sufficiently” something they’re not. It’s like surmising that a pro-Obama conservative like Andrew Sullivan can be “sufficiently liberal,” when obviously that’s a contradiction in terms.
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The key argument is not that Elena Kagan isn’t liberal enough, it’s that she’s not a liberal at all –she’s of a political philosophy that lightly concurs with liberalism on some matters, but vigorously disagrees on most everything else.
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It’s not a “purity test” –though that’s just the sort of criticism someone of this “post-ideological” bent would make– to argue that Kagan probably isn’t liberal, just like it doesn’t take administering some ideological loyalty oath to argue that she is not a conservative. She’s probably most like the President, i.e. an ideological centrist; a judicial technocrat in the same mold that Larry Summers is a financial technocrat, and that Barack Obama is a political technocrat.
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That the base is or isn’t satisfied with this state of affairs speaks mostly to the (successful) opacity of Obama’s language, to cultural factors that characterize the Democratic party, and to a parallel (although different) decline of American politics exemplified by the popular right.
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She’s probably not a liberal. The President is definitely not a liberal. That is what it is; we’re just asking that others be forthright about what they are, and to what mode of governance they adhere.
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It’s not purity we want, it’s honesty.

Supposedly it’s 18 cases over the next two years, according to the WH at the moment.

I know, it could be Johnny Mac nominating another Scalia, but isn’t the SCOTUS the last refuge of the liberal base, you, know, the one reason to hold your nose and click dem.

Just catching up with the news. Best thing GG said today:

“The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.”

Actually, I have no opinion on what she is. I don’t have enough data to form such an opinion, unlike your glib answer.
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Would you care to share on what your definitive “no” is based?
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(And Obama is not a liberal? Not even a smidge? That’s an interesting viewpoint.)

“Judicial technocrat”? Based on what? In exactly what circumstance has she been “judicial” or a “technocrat” or a “judicial technocrat”? Labeling her as such to be anathema to the left seems a bit unfair, considering that you’re just speculating about her ideological sympathies.
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Your sentence here caught my eye: “…it’s that she’s not a liberal at all –she’s of a political philosophy that lightly concurs with liberalism on some matters, but vigorously disagrees on most everything else.” She either “lightly concurs” but “vigorously disagrees” to your side. “Lightly” for you or “vigorously” against you. Crikey, we know little about her judicial leanings, but by your description, she sounds like a card-carrying rightwing whackjob to me.
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It’s clear you’re dead-set against Kagan, though what you base that on besides a loathing for Obama it’s hard to fathom. For me, like tstar3, the jury is out, and I’m willing to wait to see what is revealed.

That GG analysis seems a little off to me. “The Right” didn’t appoint John Roberts and Sam Alito; Bush did. He also tried to appoint Harriet Myers and failed miserably. And maybe I’m not remembering Roberts’s and Alito’s confirmation hearings correctly but while they did have “long and clear records” they moderated their views during the questioning. I don’t remember them being particularly confrontational about ideology, but perhaps my memory is faulty.
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And while Kagan doesn’t have a long written record, Sotomayor’s was pretty lengthy and clear. Is it conventional wisdom that Roberts and Alito are more right, aggressively so, than Sotomayor and Kagan are left?

Pork,
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GG’s use of “the right” here obviously doesn’t refer brownshirts. Right as in right of center, though we’d all likely disagree about exactly how far right.
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I do agree with you about his nominees’ confirmation hearings as well as dem nominees. From this pt. FWD it’s all kabuki. She will be confirmed, cipher or not. But as a member of Obama’s base, I want more to go on than her being bosom chums with the president.
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In any event, Alito/Roberts did leave more of a paper trail re: their judicial opinions and world views and obviously Greenwald’s larger and more potent point is that republicans and/or conservatives are wholly unafraid to voice their guiding (however warped) principles. Whereas purported liberals have been speaking in tongues for so long, they’ve been so detached from liberal discourse (passe’ as it is in the village) that I daresay they’ve lost any semblance of fluency.
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And thus we have an electorate wholly misinformed about what liberalism actually is (humongous steaming-divot assist from MSM).

Nflfoghorn,
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Your statement is very true. It is saying the same thing as my statement, “that there are two sides to every story and truth is usually somewhere in between”.
Great minds think alike. At least on occasions.

tstar3, im from florida as well and usually i would be be more moderate than anything. but you cant fault progressives because they finally want someone who wont stand with the powerful all the time. repubs always pick the most extreme of candidates. dems always pick center-right candidate. for pretty much everything. its not abt ideology anymore. everyone is resigned. at the very least, reasonable folks want someone who wont give unfettered power to the executive branch. that seems like a low bar. and yet we still don’t know. and besides, what’s the deal with faulting people for airing their grievances? if anything it helps recognizing where potential problems are. when was the last time any confirmation hearing shed light on someone’s views? why do you presume it’ll start with kagan?

and this whole ‘truth being in the middle’ thing is ignoring reality. i used to think that too, but that requires responsible, informed citizenry. if one side is lying and the other side is talking out of their lower cavity, what you get is less than the truth and the whole truth. but that scenario sadly represents our current reality

“and besides, what’s the deal with faulting people for airing their grievances?”
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No kidding right? As if a 1000 Greenwalds or Zechmans have impacted either Obama or congressional dem actions. IOW, let us winge–it’s all we’ve got. Meanwhile, for those who take more favorable views of Obama/his policies, odds are you’ll be pleased in the end. We’ll have pissed and moaned a lot.
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However, please, for the love of god, do not ask progressives to be f’ing enthusiastic supporters of office-holders who refuse to offer us a single piece of red meat.

“Greenwald’s larger and more potent point is that republicans and/or conservatives are wholly unafraid to voice their guiding (however warped) principles.”
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And I believe he’s off. Greenwald tries to ascribe to the greater party the decision that belongs to only one man. The SC choice is the lone preference of the President and no one else. Not “Republicans” or “conservatives”. (Harriet Miers was clearly one man’s choice, bad enough his own party balked.) Which is why I think the reasoning of the GG quote above to be wrong.
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Maybe what Greenwald really meant is that Bush is more ballsy about putting forth ideologically extreme candidates than Obama. But then he should have said that.

“The SC choice is the lone preference of the President and no one else”
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Technically true but absolute and utter horseshit when one considers that this selection will impact every American man, woman and unborn child for decades to come. His selection should obviously fall in line with his supporters’ views. Whether a majority, if properly informed about their merits/demerits, would favor Diane Wood or Elena Kagan, I cannot say, but the notion that Obama should come to such a momentous decision by ignoring the people who put him where he is and (one would guess) will be asked to return him to office in 2013 is ludicrous.

“The SC choice is the lone preference of the President and no one else”
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Technically true but absolute and utter horsesh!t when one considers that this selection will impact every American man, woman and unborn child for decades to come. His selection should obviously fall in line with his supporters’ views. Whether a majority, if properly informed about their merits/demerits, would favor a prospect like Diane Wood or Elena Kagan, I cannot say, but the notion that Obama should come to such a momentous decision by ignoring the people who put him where he is and (one would guess) will be asked to return him to office in 2013 is ludicrous.

porkdumpling:

“Judicial technocrat”? Based on what?

Based on the preference for technocrats evinced by Third Way ideologues and New Democrats. Obama is a self-described New Democrat, he has selected the likes of Larry Summers and Tom Daschle to people his administration, and his rhetoric is chock-full of “post-ideological” Third Way bromides and arguments. It’s entirely reasonable to suppose the likelihood of appointments that share his Administration’s ideology for the most part. To do otherwise is to suspend one’s faculties as well as judgment.

Labeling her as such to be anathema to the left seems a bit unfair, considering that you’re just speculating about her ideological sympathies.

You’re right, especially with a record as spare as hers, its impossible to empirically verify such conjecture, but “labeling” her is about as inappropriate as conjecturing that an appointment to, say, head Interior in a theoretical McCain Administration might be likely to be a movement conservative. It’s hardly unfair to consider the likelihood that New Democrats, with their reflexive disdain for liberals, would make appointments or push policy that leaves liberal goals unfulfilled.
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You’ve misunderstood a few more things

She either “lightly concurs” but “vigorously disagrees” to your side. “Lightly” for you or “vigorously” against you. Crikey, we know little about her judicial leanings, but by your description, she sounds like a card-carrying rightwing whackjob to me.

Well, Crikey, it sounds like you either can’t imagine that there is political philosophy loudly differentiated from both conservatism and liberalism (usually by statements that predictably begin with “Some on the left oppose my policies because of X, some on the right oppose them because of Y…“), or you’ve thought of a suitable strawman (“Crikey, it sounds as if you think Kagan is some sort of spotted owl!“).
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One doesn’t need to be a frothing rightist to oppose liberals and liberalism –just ask Hillary Clinton, or Joe Klein, or John Podesta if they are “liberals”. Certainly Barack Obama won’t identify himself as a liberal, because he isn’t one. He identifies himself as a New Democrat, however, because that’s exactly what he is.

It’s clear you’re dead-set against Kagan, though what you base that on besides a loathing for Obama it’s hard to fathom.

It’s such an obvious and predictable attack at this point to try to discredit real criticism of centrist politicians from the left as the product of some personal hatred or desire for “purity,” that it’s hardly worth responding. I will merely say that, for you to fail to consider that there could be rational reasons for liberals to oppose the center’s agenda, or to demand liberal policy in return for their continued support, says much more about your imagination than it does about anyone’s “loathing” of anything.

For me, like tstar3, the jury is out, and I’m willing to wait to see what is revealed.

Yes, that is the line to which we liberals have become accustomed. As much as we’re made out to be the equivalent of the Know Nothing popular right, we’re not quite as stupid as the center believes, so it’s probably time to find a new pony to which liberals might attach their hopes, don’t you think?

Interesting thread. More nuance than I was expecting.