I have to admit that, when I first heard that Solicitor General Elena Kagan was chosen by the Obama White House as its Supreme Court nominee, I really wondered what the hell they were thinking. After all, Judge Diane Wood, for example (noted here), has a long record of rulings in favor basically of individual rights versus corporations, landlords and school faith organizations, among others, to say nothing of following RICO statutes against anti-abortion protestors. And, as Wikipedia tells us, Wood has managed to work successfully on the Seventh Circuit Court of Appeals with conservative jurists Frank Easterbrook and Richard Posner, so she knows a thing or two about consensus-building.
Also, I understand the arguments posed by Glenn Greenwald and Will Bunch, among others (Bunch’s post is here), that Kagan is too submissive to presidential authority, with Greenwald saying “Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her,” as Think Progress notes here.
I also wonder why (with due respect to Bunch) he would think the Obama White House would actually care about the opinion of progressive bloggers on this subject. Yes, when it comes to legislative issues or other presidential appointments, to say nothing of congressional legislation, we should make our voices heard loud and long as appropriate. And we should also speak out on this issue as we see fit. All I’m saying is that this decision has probably been vetted about a dozen different ways at least, and I can’t imagine Obama pulling back this nomination because of an outcry from Greenwald, The Daily Kos, The Huffington Post, Liberal Oasis, firedoglake, or anyone else, leading to the automatic corporate media chastisement that Obama is a puppet of “the left.”
To me, the explanation for the Kagan choice can be summed up in two words: Citizens United.
Obama wants if not the liberal/progressive counterweight to Roberts, Scalia and the rest of that bunch, then at least a deferential centrist (and we’re finding out just how much of a blind eye Obama is turning to the excesses of his predecessor, by the way – apparently, Kagan would have no problem there). And yes, I think this decision has more to do with politics than the law. And I bemoan that also, but though Kagan will have to compete eventually with fellow jurists if she is confirmed, for now, she will be served up for consumption by the political elites and beltway blowhards as part of the confirmation process, and my guess is that she knows this battleground pretty well. Maybe Wood, Merrick Garland or someone else would be able to navigate that territory also, but now, we probably will never know.
But to me, the Citizens United ruling for Obama (as it was for many others) was a message that the High Court of Hangin’ Judge JR needed to be “reined in,” particularly in its deference towards corporations. And I think Obama believes that Kagan would represent an opposition force against that.
However, if he thought the Kagan selection would somehow placate the wingnuts (as if anything ever would), our president is very much mistaken, as noted here.
Update 5/11/10: Oh, by the way, in a related story as they say, here is another illustrious move for Snarlin’ Arlen.