Saturday, May 15, 2010

Why a Safe Pick is Not a Good Pick

This is definitely arriving late on the scene, but I think it’s time (after quite an extended break) that we discuss Elena Kagan on Lefty’s. The current solicitor general of the United States is President Obama’s nominee for the soon-to-be-vacant Supreme Court position held by Justice John Paul Stevens, and I’ve heard objections from all over the place. At least I'm not the only one feeling a bit nervous about her.

This former Dean of the Law School at Harvard has strong legal knowledge and a decent amount of political experience in Washington. Kagan studied and received degrees from Princeton, Oxford and Harvard. She went on to teach at both the University of Chicago Law School and Harvard Law School, eventually assuming the position of dean. She worked under Bill Clinton as Associate White House Counsel and Deputy Assistant to the President for Domestic Policy. I don’t doubt she’s a smart lady, but I take issue with a few other things.

I’m not going to argue the inexperience card; I balk at anyone who suggests that inexperience should disqualify anyone from any position. I take issue with her positions, or lack there of. Kagan’s positions on many of the most important contemporary judicial proceedings are unknown. She has stayed notably silent on issues regarding the expansion of executive power and national security. What is even more unsettling than not knowing how she may rule concerning many issues is what one can infer from looking at the few articles and memos she has written over the years.

As a liberal, I cling dearly to certain ideals, particularly freedom of speech. I’m often not a fan of most speech (Tea Parties, anyone?), but like Voltaire, I will defend the right to say it. In 1996, Kagan wrote an article while at the University of Chicago arguing that the government has the right to restrict our right to free speech, even in light of the First Amendment, if the government believes the speech to be detrimental and the government acts with good intentions. She has even been found to have been in support of a law that would have made the depiction of animal cruelty illegal, which was later found to be unconstitutional.

Another issue that I think most liberals are pretty adamant about: human rights. Kagan has championed the defense of Bush-era war on terror tactics such as detention without trial of Guantanamo prisoners and Bush’s “state secrets” claim in order to avoid lawsuits regarding warrantless wiretapping programs. Kagan was also criticized at her solicitor general confirmation hearing for arguing that battlefield law, such as indefinite detention without trial, could be expanded to be applied outside the traditional battlefield.

I don’t have much else to argue off of because the woman has almost no history of academic articles and has only argued six cases before the Court in her time as solicitor general. Now, I know there are worse options, I know. But when commentators on Fox News are lauding her selection because they believe it will move the court back towards the right, I think we have a problem. Picking her to avoid another tough fight after health care is short sighted and ill advised. I fear this lack of knowledge will come back and bite us all in the ass when we realize that maybe she’s just a bit more conservative than we expected. I know she’s not the end of the world, but she just seems like a mediocre pick, which is sad when we could have had so much better. Here’s hoping for the best.


Thomas Wachtel said...

You beat me to this. Damned laziness...

I agree with all of your objections. I knew about the human rights stuff and that was really worrying me, but I hadn't seen the rest of this yet. I am not particularly pleased. The free speech issue particularly peeves me -- especially the animal cruelty thing, about which I've had arguments with people before.

Maybe she's a sleeper agent who's been intentionally doing stuff conservatives like just so she can get in the court, only to go crazy hippie liberal when she is actually on the Court. I hope that's what's going on.

Anonymous said...

Aly, as a fellow Democrat, I don't think we should pick judges who will merely act as liberal (or conservative) legislators on the bench. I think that President Obama has an appreciation of the importance of a nonpartisan court and has picked judges who, while clearly left-leaning, are not ideologues like many of Bush's picks. I think it is the overstatement of the century to call Kagan "mediocre" simply because you're worried that she won't make every decision the way you want it to happen--that's not her job! I also do not think that it's fair to call this pick "short sighted". If we have learned anything about President Obama, it's that he cares not about holding steadfast to a political platform, but about building consensus and finding pragmatic solutions. Kagan is known for her ability to build such consensus between conservative and liberal interpretations of the law, and given her age, she will (hopefully) be on the SC for a long time. I think that Obama's thinking was entirely NON-short sighted. He knows that we will eventually get a conservative president after him, and this president might appoint another Roberts or Scalia. Kagan is well-respected and has the potential to bridge present and future ideological gaps on the court, as opposed to simply being one more auto-liberal vote. We probably don't (and won't) agree with every decision she makes or opinion she holds, but I think we can count on her to be thoughtful, honest, and pragmatic, instead of invariably asserting, like some, that the Constitution is "dead", or, like others, that it is not only a "living document", but one which exists for the sole purpose of advancing the Democratic agenda.

Aly said...

Like I said, I don't doubt she's a smart, thoughtful woman with a lot to offer. But I don't think she's the best pick, and not because she's not extremely liberal. Compared to some, I myself have been called fairly moderate by other liberals. I just disagree strongly with some of her interpretations. I know she won't always do what I would - for example, she has said she sees no constitutional basis for gay marriage. And perhaps she is correct. But to me, her stances on the first amendment and indefinite detention seem just unfounded and wrong, and I wish someone better had been chosen. Like I said, she isn't bad. I just don't think she's great either. I think mediocre describes this feeling quite well.

Colleen Lowry said...

Plus, she kinda looks like Chris Kattan.

Tom (anonymous earlier, didn't see this option) said...

Yeah, she said there's no constitutional basis for gay marriage because there really, really isn't-- it's an issue the federal govt should stay out of. (I'm for gay marriage, by the way.) I do think she should be questioned heavily on the First Amendment, but she is against laws prohibiting flag-burning and against govt interfering with "disfavored" speech. On discrimination and hate speech, she has said that "new solutions ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment." Yes, fighting hate speech can threaten the First Amendment, so I think she should be questioned on how to balance these desires. Perhaps sadly, I do not think that her views on indefinite detention are completely unfounded. We can't deny that this "War on Terror" (I hate the phrase) truly does alter what we consider a battlefield and how we define it. Once again, I think she seems to realize the fine line and legitimate concerns on both sides and tries to reconcile them.

By the way, instead of restating your original case, I think we'd make more ground if you addressed the points I made in my original post.

Aly said...

The reason I am not addressing your points is I would prefer not to debate over the internet, especially when this was written simply as an opinion piece. While I'm sure Kagan can build consensus quite well, that does not make me feel any better about her constitutional interpretation, and let's face it, to some degree everything comes down to opinion and interpretation. Just like you agree with her that forms of censorship should be explored, I completely disagree and believe speech is a right, no matter how disgusting it may be. Again, with indefinite detention, I believe it is completely unfounded and goes against basic human rights (we should have ratified the UDHR a long time ago, another thing that needs to be fixed in the US). So do I believe she will build consensus? Sure. Do I believe she will protect certain rights of mine that I cling tightly to? Maybe. But 'maybe' isn't quite good enough for me, which is why I maintain my opinion that Kagan is merely okay.