Compromising justice

May 14, 2010

Nicole Colson looks at Barack Obama's nomination of Elena Kagan to the Supreme Court--and why progressives are right to be worried about what she'd do as a justice.

THE OBAMA administration went with every Washington insider's odds-on favorite in announcing its nominee to replace retiring Supreme Court Justice John Paul Stevens: Elena Kagan, the current Solicitor General of the United States.

Kagan's nomination prompted the predictable chorus of right-wing indignation. Republicans claim that she's "inexperienced," having never been a judge before. That's true--but Bill Clinton had nominated Kagan to be a federal judge, and Senate Republicans blocked her with a filibuster.

Dozens of past Supreme Court justices didn't have experience as a judge when they were appointed--including conservative hero William Rehnquist. Clarence Thomas had been a judge for 16 months when he was nominated.

More outrageous are the personal attacks on Kagan. National Review blogger Ed Whelan slammed Kagan after the Washington Post wrote that she is "such a product of New York City that she did not learn to drive until her late 20s." This, according to Whelan (in a post titled "Not the NASCAR justice"), "nicely captures Elena Kagan's remoteness from the lives of most Americans."

Elena Kagan, flanked by Barack Obama and Joe Biden, during a White House press conference
Elena Kagan, flanked by Barack Obama and Joe Biden, during a White House press conference

Lived in New York! Learned to drive late! Clearly, she's a public-transit-loving, liberal commie.

And, of course, the right-wing rumor mill is in overdrive speculating on the 50-year-old and unmarried Kagan's sexual orientation. Far-right groups including the "American Family Association" and "Americans for Truth" have demanded that Kagan answer whether she is a "practicing homosexual." Focus on the Family, another far-right group, has declared that it will not tolerate a gay Supreme Court justice.

Republicans are also grumbling over an article Kagan wrote in 1993 in the Texas Law Review honoring Supreme Court Justice Thurgood Marshall, the first African American justice, for whom Kagan served as a clerk. In the article, Kagan noted:

During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was "defective"; only over the course of 200 years had the nation "attain[ed] the system of constitutional government, and its respect for...individual freedoms and human rights, we hold as fundamental today."

Such heresy prompted Republican National Committee Chair Michael Steele to announce that "Given Kagan's...support for statements suggesting that the Constitution 'as originally drafted and conceived, was defective,' you can expect Senate Republicans to respectfully raise serious and tough questions."

For Michael Steele--who, like Marshall, is African American--to deny that there was anything "defective" about the Constitution as originally drafted is hard to stomach, considering the fact that under its original wording, he would have counted as three-fifths of a human being.


THE WHITE House has called Kagan a "legal progressive"--and on one prominent issue, she has taken a stand.

While dean of Harvard Law School from 2003-09, Kagan supported the school's "anti-discrimination" policy, adopted in 1979, that banned military recruiters from campus because of the federal "don't ask, don't tell" policy that discriminates against gays in the military.

When the Bush administration threatened to withhold federal funding from Harvard and other schools that banned recruiters, Kagan spoke out, calling the "don't ask, don't tell" policy "deeply wrong--both unwise and unjust."

Kagan was right--although, as Salon.com's Glenn Greenwald pointed out, Kagan eventually reversed Harvard's ban "and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment)."

Kagan's stand on "don't ask, don't tell" has added to conservatives' fears that Kagan might, as a justice, embrace lesbian, gay, bisexual and transgender (LGBT) rights on issues such as marriage equality and job protection.

But the right's concerns may be misplaced. As part of her confirmation for Solicitor General in 2009, Kagan was asked whether she would defend the constitutionality of the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, even in states where they are performed.

Kagan replied that, as solicitor general, she would defend any acts "if there is any reasonable basis to do so." She added, "There is no federal constitutional right to same-sex marriage."

On several other key issues, there is plenty of evidence to show that Kagan is not the progressive choice for the court that many liberals expected of the Obama administration.

She has written in the past, for example, that capital punishment is "constitutional in a wide variety of cases and circumstances" and that "I am not morally opposed to capital punishment."

Kagan's record on the question of abortion rights--under increasing attack by conservatives--is dubious. In 1997, during her job as White House adviser for Bill Clinton, Kagan apparently urged Clinton to support a ban on late-term abortions proposed by Senate Minority Leader Tom Daschle.

The legislation Kagan wanted Clinton to support would have banned all abortions of viable fetuses except when the health of the mother was at risk, according to documents from Clinton's presidential library.

Kagan apparently saw the measure as a "compromise"--and a way for the Clinton administration to do an end run around an even stricter Republican-sponsored measure. "The memo [Kagan co-authored] anticipated that the Daschle plan would fail, but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans," according to the New York Times.

Kagan has said she would uphold legal precedent when it comes to existing abortion laws like Roe v. Wade, but playing political football with women's right to abortion should leave progressives with a bad taste in their mouths.

Likewise, during her 2009 confirmation hearings for solicitor general, Kagan renounced a memo she wrote while serving as a clerk for Thurgood Marshall in 1989. That memo suggested that faith-based groups--like "crisis pregnancy centers" funded by religious groups--should not receive money for certain activities.

According to the New York Times, "Pregnancy care centers, she thought at the time, would not be able to counsel pregnant teenagers without injecting their religious beliefs." That's a no-brainer to anyone who has ever looked into the record of such organizations.

At her 2009 hearing, however, Kagan backtracked--saying that presuming a religious organization would use money in an impermissible manner was incorrect, and that they should be allowed federal funds.


PROBABLY THE most troubling area of Kagan's record is on presidential power and the scope of the "war on terror."

In her role as solicitor general, Kagan defended a law that criminalizes so-called "material support" to foreign terrorist organizations--even when that support consists of training and advice about entirely peaceful and legal activities.

Similar laws have been used to go after several high-profile victims of the war on terror, including Palestinian professor Sami Al-Arian, who spent years in prison on trumped-up charges and whose case is still pending, and Syed Fahad Hashmi, who faces 15 years in prison for the "crime" of allowing an acquaintance to stay with him while the person had ponchos and waterproof socks that supposedly ended up in the hands of al-Qaeda.

In addition to wrecking lives, this law criminalizes free speech and makes it impossible for legitimate charities to get aid to those in need around the globe.

In the case of the specific law Kagan advocated for, the aid groups involved had trained a group in Turkey on how to bring human rights complaints to the United Nations and assisted it in peace negotiations--but were forced to halt the activities when the Turkish group was designated as a terrorist group by the U.S. in 1997.

Additionally, during her confirmation hearing for solicitor general, Kagan publicly supported the right of the U.S. to detain indefinitely those suspected of helping al-Qaeda without a trial.

Kagan has also defended expanding the scope of presidential power. In a 2001 article in the Harvard Law Review that considered the "unitary executive" theory--which basically argues that the president, rather than Congress, has primary control over administrative agencies, and so can go around Congress on some issues--Kagan wrote that such presidential control "expanded dramatically during the Clinton presidency," a development she largely welcomed.

As Greenwald noted:

On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority--perhaps on the far end, almost certainly much further than where Stevens falls. It's perhaps unsurprising that a president--such as Barack Obama--would want someone on the Supreme Court who is quite deferential to executive authority.

But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn't these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?


ASIDE FROM Kagan's personal and legal philosophies, there's a larger point mostly going unnoticed in the press. Kagan was the safest and most non-controversial choice for Obama, designed in particular to placate Republican critics of "activist judges"--and that says a lot about whether Obama actually wants to change the direction of the Supreme Court.

After some liberal commentators questioned Kagan's progressive credentials, Obama declared that Justice Thurgood Marshall's "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena's career."

But there is ample evidence that Kagan strongly disagrees with Marshall's activist, progressive view of the role of the court. (Marshall once described his legal philosophy as, "You do what you think is right and let the law catch up.")

In Kagan's written responses to Senate questions during her confirmation for solicitor general in 2009, for example, she disagreed with the view that the courts should take the lead in creating a more equal and just society. Kagan wrote: "I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so."

This view is perhaps not as far from Barack Obama's own as some progressives might believe. As Slate.com's Dahlia Lithwick noted, Obama "wrote about this in The Audacity of Hope, making clear that liberals had become too dependent on the judicial branch to solve their political problems: '[I]n our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.'"

And in a recent interview aboard Air Force One in which he was asked about his views of the Supreme Court, Obama offered a criticism of "activist judges":

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes and tried to impose judicial solutions on problems, instead of letting the process work itself through politically. And in the '60s and '70s, the feeling was, is that liberals were guilty of that kind of approach.

This was another revealing Obama moment--one of many in which he has taken a potshot at liberals in order to position himself in the center of mainstream politics, between the "extremes" of conservatism and liberalism.

With 59 Democrats in the Senate and nothing very controversial about her to prompt a Republican filibuster, it seems likely that Kagan's nomination will be confirmed. That will be celebrated as an Obama victory over the windbags of the Republican right. But we shouldn't let it be forgotten that the Obama administration chose the most middle-of-the-road nominee possible.

Kagan is to the left of Antonin Scalia and the ideological Neanderthals that George W. Bush nominated. But her record is of a moderate and a compromiser. The millions of people who voted Barack Obama into office expected more--a challenge to the conservative shift in the Supreme Court during the last decade and beyond. Kagan won't provide that challenge.

Without a struggle from below that confronts the priorities of the Obama administration, we'll be left with Obama's political pragmatism and Kagan's centrism.

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