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Monday, May 10, 2010

About Elena Kagan

If you are watching from the right, you probably want to know a little more about Elena Kagan. You’ll find what you need to know here.

As for me, I’m not seeing much stomach for a fight over her--but that just might be me projecting. I don’t mind her lack of judicial experience and, for the most part, don’t find anything particularly objectionable about her. She isn’t the person that I would choose (or even hope for), but I think she falls within that reasonable space where the President is allowed to choose candidates for the high courts that match his beliefs.

Not that her past doesn’t invite some criticism and question.

Keeping in mind that I am in favor of allowing gays to openly serve in the military, her decision as dean of Harvard’s law school to ban military recruiters from using the school’s recruitment office is one that I find personally offensive. It’s the one thing that I’ve seen so far in her record that makes me want to see the GOP fight the nomination. Peter Beinart gets it right when he says this:

Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.

The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.

Now, I’m still listening to the debate, but I don’t think that our military is so brittle that it won’t survive the open service of patriotic gay and lesbian citizens. I find myself siding with Kagan on the substance of her argument if not with the actions that she took to support them; in that, I feel completely in line with Beinart. What I find most worrisome, though, isn’t that incident.

What I find most worrisome is that she abandoned her position when university president, Lawrance Summers, made it clear that Harvard was not willing to fight the battle. As a member of the Supreme Court, there will be no one acting as a pragmatic check on her more progressive ideals. When moved outside the realm where institutional politics play a role in tempering decision-making, what will she do?

She still seems a reasonable choice for the opening and I imagine that, unless something much worse comes to light, she will be confirmed. But it should also act as a good reminder of one of the reasons that the presidential elections are so important: whoever inherits that seat will likely be with us for decades to come, and many of the decisions that they make will be in complete opposition to our beliefs.

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I think Kagan is about the best choice we could hope for.
She’s not excessively liberal, and not having been a judge, she might end up being persuaded by the more intellectual heavyweights like Scalia, Alito, or the Chief.

On the other hand, never having been a judge, she might be more open to making up justifications to pull precedents from thin air.

Then again, being a judge never stopped Ginsburg from doing that.

Anyway, if she is blocked, we won’t get a better choice.  The Harriet Miers process sucked, but the outcome was great for conservatives.  Blocking Kagan would just give him justification to move more left.

However, I do want a tough nomination battle.

The reason is that totally aside from the above reason that you can hate the rule w/o blaming the military who sacrifice their lives to protect your freedom, I want the nomination battle in order to highlight:

- the rule was written by Democrats
- the rule was passed by Democrats
- President Obama has done nothing to repeal the rule, despite overwhelming majorities in both houses

I want to highlight to every special interest group that makes up the Democrat coalition that, yes: they take your vote for granted whenever possible.  They take the black vote for granted, and screw over blacks: Honestly, can anyone say decades of Democrat control/leadership has improved the situation in black neighborhoods over the last 3 decades?  They take the gay vote for granted.  They take the Hispanic vote for granted.  They take the pro-choice vote for granted.

In fact, the only way a special interest group gets support from Democrat leaders in legislation or executive order is when they frame their demands in the form of expanding govt control universally over everyone’s daily life.

I want that hypocrisy highlighted.

on May 10 2010 @ 09:07 PM

I think people are exaggerating her supposed moderate ideology.  Probably we won’t get a “better” choice if we find a way to punt her off, but the reality is that she’s an embarrassing lightweight.  Consistent with Obama’s history of picking lightweights for VP, cabinet and judicial openings.

on May 11 2010 @ 05:45 PM

I don’t think she’s much of a moderate, although I do think we could have seen much worse. I also tend to think that Hillary would have been a better choice in some ways.

But I also don’t think she’ll be much of a force on the court--it’s no loss in the sense that she’s replacing someone who is pretty similar philosophically, so none of the decisions will much change and she is such a lightweight that I can’t imagine her ever writing a decision that anyone will much care about. The thing that bugs me most is that she’s young enough that she’ll be in that chair for an awfully long time.

I’m not the first person to say it, but her nomination really does remind me of the Miers nomination. That’s not really a good thing.

on May 11 2010 @ 08:00 PM

I know the main reason I’m not worked up about her is, I think the parallels with Harriet Miers go deeper than just the fact she’s being opposed by the Left for lacking the proggnutty goodness they’ve been HOPEing for from Obama.

(And no, I’m not implying Miers was gay...)

on May 12 2010 @ 06:13 PM
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