Obama nominates Kagan for Supreme Court to replace John Paul Stevens Su

Another interesting perspective on Kagan - and how being moderate actually may result in more decisions that favor liberals. I don't know enough about SC dynamics to know whether it has much merit.

http://www.huffingtonpost.com/lawrence-lessig/on-the-difference-between_b_571742.html

Key part:


Yet of course, my attestations are not evidence, and as I've said before, I don't believe they should suffice to eliminate anyone's questions. But I do think these questions are obscuring a more fundamental point about this nomination which I do believe this president was absolutely right to recognize.

Barack Obama is appointing the 4th justice to the non-right-wing wing of the Supreme Court, not the 5th. If the appointment is successful, it will produce decisions with at least 5 votes that are closer to Obama's view of the Constitution than to Bush's.

So what kind of 4th Justice is likely to produce that 5th vote?

To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left. A bold, if sometimes bullying, extremist that marks off clearly the difference between the Left and the Right. Someone we could rally around. A new hero for an ideology too often too afraid to assert itself.

But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes. No doubt it would produce brilliant dissents. No doubt it would give the Keith Olbermann's of the world great copy. But it would fail to achieve the single thing we ought to be focusing on: How to build "coalitions," as Massachusetts Chief Justice Margaret Marshall put it to NPR yesterday, of five. Not compromises, not triangulations, but opinions that work hard to cobble from this diverse court a rule of principle that our side could be proud of.

The kind of justice who could do this well is not the justice who goes in with guns blazing. The lesson of Scalia's tenure is one of alienating his most likely friends, not forging strong alliances. Souter, Kennedy, and O'Connor all came to avoid following Scalia's lead by default. He set the extreme. They were not interested in extremes.

Instead, the kind of justice who could do this well is one who was practiced in "listening, before disagreeing," as the President put it yesterday. One who could disarm, through trust and respect, so as to get the other side to at least listen.

Whatever uncertainty there is in Kagan's past, there is no uncertainty about this quality in her. There is no doubt that she can do this well. That doesn't mean she's going to flip the other side on each case. It just means that she has the chance. And when one imagines the career that this 50 year old justice could have, it means she has the chance to profoundly change the direction of the actual decisions of this Court -- through the hard work of persuasion, not the self-righteous work of outraged dissents.

Thus the decision the president had to make was not just whether a fight for a clearly liberal justice could be won. It was also whether such a fight, even if won, would produce something more than romantic dissents. And as he rightly recognized, even if he could win the battle to confirm someone at the extreme, that would simply mean losing the war to win opinions on this Court.

That's what appointing the 4th Justice means. If the president get's a chance to appoint the 5th, then a different strategy makes sense. Let the 5th be the Scalia of the Left -- Pam Karlan, or you pick your liberal hero. But right now, what we need someone who can help move a divided Court, recognizing that we still stand in the minority, and our profound desire to feel good is no excuse for giving up a real chance for justice.

 

It will also mark the first time that all the justices will be from the same three law schools clustered together in the Northeast. There are 50 states in the country and almost half the justices will be from New York.

I am sure that there are many qualified female jurists from Stanford, etc etc. I guess you just are not qualified to hear cases and opine on Constitutional issues if you are from the West Coast.

 

pray tell what a stanford law grad would definitely bring that a yls/hls grad wouldn't? aside from an experience of better weather.

 

If Obama's keeping Bush's policies and practices that skirt the Constitution (such as warrantless wiretapping, extraordinary rendition and detainment policies, or blowing up US citizens who are overseas), then maybe I don't like Obama's view of the Constitution either, albeit not as much.

Kagan might not be a spring chicken, but she's pretty young. We're expected to think she'll average left. Long term, I don't think constituents want a half-assed guess. They want assurance.

If I was a far left voter, I'd think, "With a Dem president and a Dem Congress, is this the best they can do? "

 

I'm satisfied with the choice and think she will eventually control the ever important swing vote(s).

 

My point exactly. Obama is replacing a liberal with a moderate. Bush was busy replacing a moderate conservative, Sandra Day O'Connor, with a right wing activist judge, Roberts. Then he withdrew Roberts, nominated him as Chief Justice to replace Rehnquist... all of 50 years old. A kid, considering the position he assumed, and a right wing activist judge replacing a conservative. So who replaces O'Connor? Alito, another young far-right activist judge, replacing a moderate conservative.

So yeah, disappointed in the President is an understatement.

 

^ Walter Dellinger was making the point last night that the Supreme Court doesn't really work as a seesaw. You don't simply "balance" extremists with other extremists and then everything works out.
You could swap out Ginsburg, Sotomayor, Kagan & Breyer for Abbie Hoffman, Ralph Nader, Dennis Kucinich and Jerry Springer, and the majority decisions wouldn't change much. If anything you could argue that they'd be even more rightward leading.

 

I understand that judges can change and evolve after being on the court. I also understand that you can't count on it.

 

yeah but the choices aren't nader, kucinich and springer are they? diane wood is not kucinich.

the democrats have little to gain from this seat, since we're replacing a stalwart liberal at least by today's standards. however, we have a A LOT to lose, if she does happen to be a moderate.

if she's a moderate, we're left with basically 3 liberals. 5 conservatives. and one moderate. this is the ONLY time you can nominate a scalia counter. if another seat opens up, we'll have even less opportunity to nominate someone that's not a 'moderate'. we'll have less seats in the senate. if its a scalia replacement, there is no way 45 or so republicans allow obama to replace him with a real liberal. if its ginsberg, we're going to end up with another moderate, which will leave the court with 2 liberals.

if kagan wasn't the right pick, we're screwed. if she was, great, but i don't want to bet the next 25 years on hope.

 

Do you also understand that a super-passionate dissent carries about as much legal weight as a post on this BBS?

I put it this way, knowing what little I know now, I'd have a lot more faith in Soto & Kagg's ability to move the court in one direction over the long term than in Clarence Thomas' ability to do the same in the other direction.

I liked wood too - but come on, this perception that some are floating of Wood as Joan Baez and Kag as Ted Nugent, based on her arguments on executive power are just kind of silly. I mean, when acting as the Solicitor General you are technically reprsenting the US but effectively representing the view of the executive branch, it's pretty hard to argue against the executive branch's self-interest in court as an SG.

She's from a middle-class jewish chick from the UWS (who may or may not be LGBT) who clerked for Thurgood Marshall. I'm guessing that she probably does not have an iPod full of Lee Greenwood.

Second - Obama worked with both Kag & Wood for years prior to this, it's not like he was just drawing names out of a hat.

Third - expecting the Senate Republicans to have a sense of "fair play" and let more "liberal" (by their definition) candidates go through to replace more liberal retirees is extending them far too much credit.

They will be as obstructionist as possible and make the biggest poltiical hay out of whoever possible, no matter what or who they are replacing.

 

ever read holmes or brandeis?

 

I know this is going to shock you, but the democrats have spent a lot of their political capital passing healthcare reform. I don't think Obama or the moderate dems in the house/senate were eager to fight a holy war over a SC nomination this close to mid-terms.

 

Yeah, I certainly know that. Passionate dissent was what formed this country. I rather like it. I'll leave "super" to Superman, though. As insane man pointed out above (or below... whatever), this was Obama's chance to appoint a real liberal to the court. My hope is that Kagan is far more liberal than the record indicates. After all, she spent years working within the Democratic Party. Inside, she has to be known very well, along with her views. That gives me real hope that we might be getting our liberal after all. I hope so.

 

right, the liberal argument is that the democrats have no balls, and this further proves it. and hence some of us may not be completely in lock step with this administration. david cameron is to the left of barak obama. and that's frustrating for those of us who would like to join the civilized world and have a president who is actually attempting to bring reform, and even change.

democrats have delivered nothing except at times crappy compromises. what did obama do that hillary clinton or any other potential democratic president wouldn't have?

 

Gave the queen an IPod?

 

I did...100 years later. Would you rather have a justice who is most influential after he/she is dead?

 

Health care reform.

 

You're assuming that having a more staunchly liberal person on the court will result in more liberal decisions. That's the point SF is saying is not correct. Just because you have more liberal members does not result in more liberal decisions. A moderate-liberal is much more likely to sway the court on a 5-4 opinion than a staunch liberal.

You see the same thing here. No one listens much to the people who are extreme on either side.

 

You don't think Clinton would have done health care reform?

 

when the court shifted during the depression, those dissents were the basis for the new opinion. i would rather have a strong dissent, than a useless opinion. further, many actually value dissent...like stevens for one.

“If there is disagreement within an appellate court about how a case should be resolved, I firmly believe that the law will be best served by an open disclosure of that fact, not only to the litigants and their lawyers, but to the public as well,” Stevens wrote in the introduction to “Illinois Justice,” a 2001 book about the scandal. As a result, “I do clutter up the U.S. Reports with more separate writing than most lawyers have either time or inclination to read.”new yorker

but we don't even have much to base an assumption that she's a moderate liberal. she may be more of a summers, lieberman, typical clinton DLC democrat.

a) as stated in my comment it was a crappy compromise
b) and the second point is also applicable: hillary clinton or any current potential democratic president with a large majority in congress would have probably passed it too. in fact, if you recall, it was clinton who supported the mandate, and obama who disagreed. if anything, clinton's position on healthcare was much better. for god sake's nixon had a similar proposal 30 years ago.