Monday, May 10, 2010

Elena Kagan? I'll Be Surprised If There's a Vote

The definitive word is now out that Solicitor General Elena Kagan is going to be nominated for the Supreme Court by President Obama.

Lefties like Glenn Greenwald oppose Kagan because she's too closely aligned with conservatives and is pretty much a judicial blank slate because she's never been a judge. Likewise, Kagan seemed to be favorably toward the expansion of executive power during the Bush years, has been too close to Goldman Sachs, and did little minority hiring while she was the Dean of Harvard Law School.

That all bothers me as well.

But I'd be surprised if Kagan's nomination came to a vote.

The main issue is that Kagan was the leader in Harvard University's decision to exclude ROTC from campus as long as gays were excluded from the military.

That's a position I support.

But the Republicans are going to frame the Kagan choice as "Gay Rights vs America" and they'll most likely have a great deal of success in mobilizing Tea Party support as the Obama administration struggles to get beyond its initial tone deafness.

It's hard for me to see how the politics of the Kagan nomination are going to be anything but pretty grim because of the likelihood of Democratic defections. It's easy to see Joe Lieberman and Ben Nelson declaring against Kagan as a way to stick it to the left. At the same time, it's hard to see Blanche Lincoln and Mary Landrieu as standing up to conservative pressure to vote the "pro-military" values of their constituents.

That's four Democratic "no votes" right off the top of my head. So Harry Reid is going to start with 55 votes out of the 60 he's going to need to overcome the inevitable GOP filibuster.

I'm a big believer in fuzzy math. But I don't see anything fuzzy about the the math of a Kagan nomination.

Apparently, the Obama administration thought a Kagan nomination would be difficult to demonize.

They're in for a rude awakening.


Anonymous said...

Wrong again. Conservatives will love her because she is a big fan of expanded presidential power. She is also tied into the Goldman Sachs Crime Family, which has supplicants in both parties. They'll make a little noise about the ROTC thing, but that particular wedge issue is losing its luster.

Orrin Hatch himself said she is "brilliant."

That said, this could be Obama's Harriet Miers situation, but without all the blatant stupidity.

Ric Caric said...

You seem to think the right cares about issues like the ROTC. The Republicans will be looking to demonize her for not being a conservative. Not being a conservative, Kagan provides openings. The right is going to push very hard on the ROTC issue because that's currently their best opening.

Anonymous said...

Is it really? If so, she's going to have a pretty easy confirmation.

So is she a conservative or not? Make up your mind.

Ric Caric said...

I don't think Kagan's a conservative at all. Is she as progressive as I want? Probably not. Is she an insufferable Harvard snob? Possibly. But I'm pretty sure she'll be voting with the left on most important issues before the Supreme Court. So I'm ok with her nomination even if I'm not going to do cartwheels.

Anonymous said...

Sorry RSI. You're just wrong on this one. Conservatives are as relieved with this pick as Progressives should be disappointed. Politically, Republicans may well have preferred to run against a principled Progressive into the midterms. But from the perspective of the SCOTUS, which is perhaps the one thing they care more about than fleeting electoral gains, they know they could not have done better. Kagan is no intellectual counterweight to the Scalia/Alito/Roberts block (as Sunstein could have been). And she's not a feisty, smart, and principled Progressive (as Wood might have been). Rather, she's someone who proved above all at Harvard that she can, and is eager to, work with conservatives. She'll look more like Kennedy than Stevens, and so with this pick the Court moves a good distance rightward. This is why folks from Kristol to Kyl have been almost complimentary, and why the most virulent attack dogs on the right have been on the muted side. There will be no filibuster. And contrary to your prediction, the strongest opposition to this pick should come from the left. That she's a woman who may be gay is not, of itself, reason to support her. Her views (expansive Presidential authority, unknown on abortion) and temperament (an instinct for judicial deference, and compromise above all) matter a great deal too. People like you should demand better of the President. The SCOTUS should not move rightward under a Progressive Democrat with a massive legislative majority, no matter how intense the pressure Congressmen from purple districts are exerting post HCR.