Elena Kagan

I’m not a lawyer nor a legal scholar, but I can’t say that I’m excited about Elena Kagan’s pick to replace John Paul Stevens on the US Supreme Court. My biggest concern is that she is being given a lifetime seat – which for someone who is only fifty, could mean thirty years on the bench or more – but there is no clear indication that she is going to be a liberal justice. The composition of the Court is important, as the Bush administration moved the Court far to the right with the appointments of Roberts and Alito. The Obama administration should have attempted to fortify the left flank of the Court and there is not only no indication that Kagan will do that, but that the Obama administration even considers shoring up the liberal side of the Court a goal they seek to achieve with their nominee.

Glenn Greenwald, who has made very persuasive arguments against Kagan’s pick over the last number of months, writes about the failure of Obama to advance a liberal composition on the Court:

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.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn?

As Glenn suggests, this is symptomatic with the larger Beltway Democrat modus operandi of not fighting for things they claim to believe in. Beyond the specific merits of Kagan versus other candidates on the short list, it is incredibly discouraging that the President does not want to have a large national debate about the importance of liberal interpretations of the Constitution and US law.

I expect many Democrats will be strongly behind Kagan because she is the President’s pick. It is a cynical play by Obama, made on the safe bet of Democratic tribalism. Of course, the alternative between tribal positions on the left and those of the right is the establishment of pessimism and ultimately sitting out the fights picked by Beltway Democrats to achieve weak positions or support ciphers in positions of prominence.

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