I’m fully on board with the notion that we desperately need more left-wing stalwarts on the Supreme Court. At the same time, I’m kind of at a loss as to how any such nominee could possibly get through the nomination process, given the current political situation. The country remains extremely polarized, the Republicans remain hitched to a poisonously alienated and resentful political base, and they find themselves with a legislative minority just big enough to successfully impose a filibuster, yet still small enough that maintaining lock-step party discipline isn’t too terribly difficult. They would’ve had every incentive in the world to shut down a strongly progressive or left-wing appointment by Obama, and the tools with which to do it. (Of course, they may go ahead and do that anyway.)
The Left’s complaint about Elena Kagan is that her record is scant enough to make her views almost impossible to identify. Dahlia Lithwick aptly dubbed her “The Sphinx.” And for anyone (like me) who thinks tilting the Supreme Court in a more liberal direction is crucial to the future well-being of the country, not knowing what you’re getting with Kagan is pretty frustrating. Still, a question mark is preferable to a known negative. (And while other writers have disagreed, particularly when it comes to executive power, James Doty has made a persuasive case in Salon that what we know of Kagan indicates she’s a staunch liberal.)
For the Obama White House, I suspect Kagan’s sphinx-ism is largely the point. The less of a record a nominee has, the fewer possible flash points there are for controversy. And having just survived the health care brawl, with financial regulation on their plate, and climate legislation or immigration reform still waiting in the wings, the administration may prefer as quiet a nomination as possible. On top of that, the Supreme Court nomination process as a whole has devolved to a point where it imposes a dull, content-less, middle-of-the-road stance on anyone who goes through it. Sometimes this stance is pure obfuscation concealing strong and genuine left or right leanings, as seems to have been the case with Roberts and Alito. (As to whether it’s the case with Sotomayor, only time will tell.) But sometimes the candidate may actually be that boring, which is the gamble with Kagan.
There’s also the strong possibility that, as a matter of principle, Obama simply isn’t interested in picking the kind of staunch leftist many in his base want. All overheated rhetoric from both his supporters and detractors aside, Obama is a left-center guy and a devout compromiser and pragmatist. This is understandably galling, but on the other hand, was there any politically realistic way of getting someone into the White House who could have been relied upon to nominate a left-wing fighter to the Court? Certainly not Hillary Clinton.
The real disappointment is that, while I think Obama’s lead-from-the-rear style has worked very well in the legislative realm, the world of Supreme Court nominations is a bit of different beast. Playing the long game doesn’t just mean taking on the fights you can win. (Though often it does mean that.) It also sometimes means picking fights that expand the horizons of debate, and that renew and reorient old conflicts and divisions. And for a while now, the Left has had to fight on the Right’s rhetorical and ideological terms when it comes to nominees to the Court. If Obama really wants to be the liberal Reagan, that’s something he’s going to need to change.
But then, putting an old-school “liberal lion” on the Court will count for nothing if said lion can’t bring other justices along. And like Obama again, Kagan has displayed the pragmatic compromiser’s knack for coalition forging. And there’s the fact that she herself has praised Thurgood Marshall as her hero, at which point we’re right back to the sphinx-ism again.
Is there something untoward about the liberals and the left simply “trusting” Obama to make a good pick, as Glenn Greenwald has argued? I suppose. But Kagan has worked for multiple White Houses in multiple capacities, and thus we have at least some empirical data as to her views and philosophic make-up. In contrast, Harriet Miers (to whom Kagan is being compared) never worked anywhere but in the Bush inner-circle, making her even more of a mystery to the conservative movement at large.
I also don’t buy Glenn Greenwald’s argument that Kagan is assured to reach the Supreme Court now that she’s been nominated. According to David Frum, conservatives were just as willing to fall in line behind Bush’s quixotic pick of Miers until two very specific things happened: 1) the process of preparing her for the Senate hearings revealed her intellectual weaknesses, both to members of the administration and more importantly to Republican senators, and 2) an old speech of hers was dug up that indicated she was pro-choice. Now, nearly everyone seems to agree that lack of intellectual heft will not be a problem for Kagan. And I seriously doubt anything equivalent to the Harriet Miers pro-choice bombshell is waiting to be unearthed. (But you never know.) But I think the Miers saga makes it clear that political bases or movements can’t torpedo a Supreme Court nominee unless they can bring some senators onto their cause. So we’ll have to wait and see how the liberals on the Judiciary Committee react to Kagan in the coming weeks.
More broadly, I suspect the political capability of a president to get whichever nominee he wants regardless of the desire of his or her base is pretty much ubiquitous. Not to be overly fatalistic here, but some amount of naked trust in leadership is inevitable, given the realities of human nature and of organized politics in a nation state of 300 million. In principle, I agree with Glenn Greenwald that such trust is antithetical to the duties of an American citizen, but at the same time railing against tribalism in politics is kind of like railing against the sun for setting. I’d be thrilled if the Left manages to nix Elena Kagan’s nomination in favor of a liberal lion. But I don’t see a realistic path to such a coup, and I imagine most everyone else feels the same way, which is why there doesn’t seem to be much enthusiasm for such a project.