The Corner

Is Kagan a Progressive?

Ever since she emerged as a favorite for the nomination, Kagan has faced an attack from the far-left, led by the likes of Glenn Greenwald, on the grounds that she is not a true-blue liberal progressive.

In reacting to the nomination, GWU Law’s liberal Jonathan Turley gives the flavor of these arguments:

President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.

But Point of Law’s Ted Frank, for one, thinks this is nonsense:

It is mysterious why the idea of Kagan is getting heat from the left. (E.g., Greenwald @ Salon.) There is no reason to think that Kagan won’t be a reliable vote on the left of the Court, and one begins to suspect that these sort of attacks are to slant the story that Kagan is somehow a “moderate” voice to blunt Republican attacks on living-constitution jurisprudence. Liberals should be thrilled with this pick: it’s someone who’s going to give them a reliable vote for what is likely to be two to three decades. (Walter Dellinger—who would’ve been my first choice on the Democratic side of the aisle—certainly understands this.)

And in a long, adulatory piece in HuffPo, liberal Harvard Law professor Lawrence Lessig, a long-time colleague and friend of Kagan, makes the positive case for Kagan as lefty:

The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, “What would be the best answer?” to any particular question, but instead, “What is the answer of fidelity?” Or again, what is the answer that most faithfully applies the law of the different generations of our Framers — the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I’m not sure that “liberals” on the Court have always accepted this framing. Certainly Douglas and Holmes didn’t feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood’s opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.

Worse still for those of us on the right, Lessig’s case for Kagan focuses on her ability to move arguments and change minds. Far from making the court “more conservative” or flipping a liberal for a liberal, Lessig says that a Justice Kagan would give progressives their best chance to form majority coalitions for decades to come:

The bottom line calculus for me in this case could not be clearer. Obama’s second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It’s not enough to appoint someone who will cast the right vote. We need someone who will make majorities.

More details on the Kagan nomination at On the News.

UPDATE: At The American Prospect, Scott Lemieux piles on with left-wing haters of Kagan, draws lessons from both the Bork and Miers nominations, and even gives conservatives a back-handed compliment or two:

When you’re reduced to noting that a prospective nominee for the highest court in the land is a “brilliant conversationalist” and that other Harvardites think she’s good people, one has pretty much conceded that the pick is Ivy League nepotism of the worst sort. The idea that the complete absence of evidence about her constitutional vision is no big deal is something that’s easy for someone who will never be denied an abortion, be discriminated against by an employer, etc. to say, but for people who actually take such things seriously it’s rather important.

As the conservative reaction to Harriet Miers indicates, conservatives do take their constitutional values seriously. I suspect we’re about to find out that far too many liberals don’t. And if a more Republican future Senate rejects or filibusters Obama’s next nominee down the road, this will rank as a blunder on a par with Reagan’s failure to nominate Robert Bork while the GOP still controlled the Senate. You don’t waste a pick on a blank-slate centrist when your position in the Senate is about to get dramatically weaker.


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