Elena Kagen

[solarbird]

To the surprise of no one, Mr. Obama has nominated Elena Kagan to replace Justice John Paul Stevens. Her record is extremely thin on the ground - comparisons to Harriet Miers's lack of record are not at all out of place here, but will be shunned by the left. The few statements we have indicate that she thinks Don't Ask/Don't Tell is legally unsupportable, but is modified by the fact that when it came to money and military recruiting vs. supporting her school's anti-discrimination policy, she - like almost everyone else - went with the money. Her scant record on the use of government and federal power has been strongly pro-executive power and pro-government power, like the two Bush appointees before her. Various people^{[weasel words, but c'mon, use google]} have claimed that that's all okay because she's just doing what her employers wanted, but doesn't willingness to do that mean anything? Shouldn't it?

Interestingly, one of the few things we do know with some degree of confidence is that she has stated quite clearly that she believes there is no Constitutional right to marriage equality, and, unless she changes her mind for some reason, will form a solid fifth vote against marriage rights. (More here.) So queers' lives can continue to be kicked around for another couple of decades or so.

There won't be any significant opposition. The fundamentalist right is already declaring her a Sekrit Lesbian and has further declared that no fag is fit for the Court, in pretty much those words. This is predictable, but worse, also strongly discourages any non-rightist opposition. (The neoconservatives like what little of their record is available, so are opposing but not with vigour.) Mind you, there wouldn't be much left opposition, because the left - such as it is - can be consistently counted upon to fold like a cheap accordion. Myers didn't get on the Court because the "right" had a fit. Kagan will, because the "left" won't, and Mr. Obama knows it.

So unless the right can uncover something, she's who we get. It's hard to say what she'll actually do once on the court, because, well, we got nothin' much to find out. She's a cipher; she's strenuously avoided anything beyond ambiguity and manoeuvring space when she's had these questions thrown at her, for a long time.

Except when it comes to marriage equality. We do know where she stands there.

Comments

[maellenkleth]

No, it shouldn't be any surprise. As long as there is a unitary right, we'll likely see all parties on the left continue to cave in because they cannot see any point in trying to push back [1]. I do not see this ending nicely at all.

The best possible outcome is for many more gays and lesbians (and kindred folk) seeking to emigrate, even though there's now that bitingly confiscatory tax upon the assets of would-be migrants.

No, not nice at all.

[technoshaman.livejournal.com]

what is this about a tax?

[trickofthedark.livejournal.com]

http://en.wikipedia.org/wiki/Expatriation_Tax
http://www.globaltaxhelp.com/tax-basics/expat-tax-basics

I'm an expat (but not expatriated) and I still retain my US citizenship and file US taxes though I permanently live out of the US.

[technoshaman.livejournal.com]

Oh. *snort* Part of me wishes I had that much stash...

The rest of me knows better. There are some huge advantages to not having a lot. (One of them is not, however, being able to host jam/housefilk/etc, for which I am grateful to our hostess...)

[jonathankorman.livejournal.com]

Lawrence Lessig, whose books I have read and whose judgment I trust, is surprisingly optimistic about her. (http://www.huffingtonpost.com/lawrence-lessig/a-case-for-kagan_b_551511.html) For all of our sakes, I hope that Lessig is right and the misgivings I share with Greenwald and others are wrong.

[solarbird]

Yeah, could be. I mean, seriously: we don't know. Most of her support comes from "Obama and Clinton like her so we do too." Even if I liked Mr. Clinton or Mr. Obama - that's not how I judge things of this import. I want data, and we don't have it. And really, we probably won't get it - hearings are generally a farce. So - could be! Who knows? There are plenty of candidates out there where we could have a record to look at and could have a clear idea of her ideas, positions, and so on - but Mr. Obama chose not to pick them. Ah, well.

[phillipalden.livejournal.com]

"The few statements we have indicate that she thinks Don't Ask/Don't Tell is legally unsupportable, but is modified by the fact that when it came to money and military recruiting vs. supporting her school's anti-discrimination policy, she - like almost everyone else - went with the money..."

I haven't heard any of her statements so I'm in no position to comment on those. And there are a lot of things that make me uncomfortable with this choice.

But in the case of the military recruitment at her school, the Jim Lehrer News Hour said that she fought that all the way, and lost.

I also heard the same things earlier on NPR. Maybe they were wrong. (It wouldn't be the first time.) And there have been a lot of choices Obama has made that I don't like.

[solarbird]

Eh, I'm feeling cranky and perhaps unduly harsh. I am told that there are actions she could've taken that would've meant involving loss of money and would've kept more of the principal intact. But I'm repeating Shit What I've Heard there, which isn't entirely fair.

[phillipalden.livejournal.com]

Even if we are both wrong about this one issue, there are still many things about Kagen that bother me. She may surprise people once she gains the bench, as Kennedy did, but I'm not hopeful.

But then, Obama has been a major disappointment in many ways, and he's broken a lot of promises he made to my (the GLBT) community. He's been throwing gays and lesbians "under the bus" since day one.

[denelian.livejournal.com]

.............


i just...


i mean, she's never sat as a judge! that is worrisome!



and - look, i personally think that so long as the "right" and the CCs crusade about marriage as a "religious thing" that the State should therefor not be involved in marriage at ALL. period.
get rid of marriage. allow "civil unions" for everyone, and that's as FAR as the State should go. want to get married? not the State's perview - that's OBVIOUSLY a religious institution, and the State doesn't make or enforce ANYTHING that is religious.



gah!

[solarbird]

i mean, she's never sat as a judge! that is worrisome!
I don't mind that. Genuinely. I mind the complete lack of data. I mind that what data we have is extremely discouraging.

[denelian.livejournal.com]

that is also true :(

she... i mean, i'm sure she's a VERY competent lawyer. but...


yeah. sigh.

[llachglin.livejournal.com]

She's the wrong choice, but I don't think you can say categorically that she's against marriage equality. She said there was "no federal constitutional right to same-sex marriage," which is literally true. The federal courts have not ruled on the issue. That doesn't mean that there's no basis for doing so in the future. And she pointedly refused to acknowledge her personal opinion about whether such a right should exist in the immediate follow-up question. The fact is, her actual position on such a case could be anything. We don't know. She also might have better views on civil liberties than she expressed as Solicitor General. Again, we don't know. And that's the problem. We need a nominee that we know supports the right things, not one that might or might not depending upon how you read the tea leaves.

It's heartening to me that Lawrence Lessig supports her nomination. But people make exceptions for long-time friends and colleagues, so his normally good judgment can't be trusted. We are being asked to take her qualifications on trust of the word of those who know her. And maybe that will work out. But it's not how the process should work.

I do think it's unfair to compare her to Harriett Miers. Miers was Bush's personal lawyer in Texas and had been White House counsel for a brief time. Kagan was a Supreme Court law clerk and Dean of Harvard Law before becoming Solicitor General. That's a much more impressive record. Even Jonathan Turley (on MSNBC last night) acknowledged that she is extremely well-qualified from a professional point of view. (I think Glenn Greenwald did too, but I might be misremembering in his case.) It's her ideology that's in question.

My policy as a liberal is to oppose her nomination but accept that she's going to get it, and keep my fingers crossed. What we really need is for someone like Scalia, Thomas, or Kennedy to retire. That way, even a poor choice like Kagan in the future will improve the outcome of decisions.

[solarbird]

I don't think you can say categorically that she's against marriage equality...
Oh, I wasn't speaking personally. And that shouldn't matter. I'm talking about what she thinks constitutional law says, and what matters there is what the constitution allows. She was either being very clear, or she was being disingenuous beyond the point of lying. I prefer to assume the former; the latter is not better.

I do think it's unfair to compare her to Harriett Miers.
I didn't. I compared her lack of record to that of Harriet Myers, by which I mean, knowledge about her thoughts on matters of law, particularly Constitutional law. It's similarly blank. I consider it a bit of a strike against her that given her impressive resume, there's so little about her judicial philosophy or opinions on Constitutional law available.

[avram]

Like Harriet Miers, seriously? A former dean of Harvard Law School might be an intellectual lightweight like Miers was supposed to have been?

If it's the lack of a paper trail you're complaining about, you could just as well compare Kagan to David Souter.

[solarbird]

To quote me, above:

Her record is extremely thin on the ground - comparisons to Harriet Myers's lack of record are not at all out of place here, but will be shunned by the left.

See? Sure, add Souter, why not.

[avram]

Because "lack of record" is not the thing Miers is infamous for, and not the thing that got her rejected.

[solarbird]

She didn't get on the court because she wasn't demonstrably rightist enough through her (entirely too scant) record. Unless you're asserting qualification mattered to the crowd objecting to Ms. Miers (something I certainly don't believe), then that's not even part of the discussion here. Mr. Bush and company tried to get his base to take his word on her rightist bona fides, and they said, "No."

Here, we have someone who has a much more distinguished employment record, certainly, but with determinedly little public record of opinion. In what little we have, we have indications of being rather "pragmatic" on civil liberties issues - supporting indefinite detention, executive power claims, and so on - and Mr. Obama and the Democratic leadership are asking their base to take their word on her bona fides, just as Mr. Bush did before them with Miers. And the base is going to say, "okay," and choose to trust Mr. Obama because they like him, even after Mr. Obama reversed himself on all his executive power, right-to-trial, warrentless wiretapping, retroactive immunity promises, and so on.

In both cases we have people who have very little public record indicating legal philosophy and positions on Constitutional issues, and in both cases you have the party leadership saying, "Trust us." The GOP base said, "no, fuck you," threw a fit, and got Justice Alito instead: a clear win for their side. They reacted, made opinions very clear, threatened action (threats which people believed because it's known they'll actually do it) and got what they wanted. The Democratic "liberal"/"progressive" wing who haven't been fond of her before now will now say "yes," many will cheerlead, many will get hostile at anyone who tries to say no, and you'll get Justice Kagan. Hopefully that'll work out. It might! But we have no really good idea.

And it's not like this conundrum was necessary. Had Judge Wood been nominated - the theoretically-actually-more-desirable nominee most commonly discussed - you wouldn't need to be dealing with someone whose opinions and positions are largely obsfucated and generally unknown. You'd be dealing with a well known quantity - like the right got, with Alito.

That's why the GOP rightist base tends to get some of the things it wants, and the Democratic leftist and civil liberties groups don't.