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

[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.