The Corner

Could Obama’s Frontrunner Move SCOTUS Rightward?

That’s what far-left legal blogger Glenn Greenwald thinks would happen if the next Asssociate Justice is Elena Kagan (or Cass Sunstein, who Greenwald suggests is in the same mold):

The danger that we won’t have such a status-quo-maintaining selection is three-fold:  (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of “post-ideological” attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as “liberal” or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times’ Peter Baker wrote last month of the candidates he said would be favored by the Left:  ”insiders doubt Mr. Obama would pick any of them now“); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama’s broad claims of executive authority is likely to be great.

While the idea that the White House has avoided “liberal” nominees is laughable, the suggestion that they might go that way in advance of the 2010 midterms is credible. As I said in an earlier post, Kagan is widely respected by both sides, and has views on separation of powers / national security issues that could even put her to the “right” of conservatives like Antonin Scalia in cases like Hamdi v. Rumsfeld, where Scalia and Stevens were alone in their narrow reading of the conditions under which a president can detain American citizens without trial. Still, she is likely to be as reliable a liberal vote on social issues as Justice Stevens ever was.

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