President Obama has not yet named his nominee to filled John Paul
Stevens' seat on the Supreme Court, but the liberal backlash against one
of his top candidates is starting to build. Solicitor General Elena
Kagan is quickly attracting controversy among liberal pundits for her
conservative stances on issues relating to executive privilege and
national security. Politico's Ben Smith called Kagan "everybody's frontrunner at
the moment," SCOTUSblog's Tom Goldstein anointed her the "prohibitive
front-runner," and the New Yorker's Jeffrey Toobin predicted she would be Obama's choice.
Here's the liberal outcry.
- 'The Case Against Elena Kagan' Salon's Glenn Greenwald leads the charge, saying Kagan would "move [the court] further to the Right." He predicts she "could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President's party supports." He is worried about why Kagan was "remaining utterly silent" through years of intense Bush-era legal battles over executive power and national security. He finds "serious red flags" in her record that should deeply concern liberals, he says.
- Not What We Need The American Prospect's Scott Lemieux sighs that Kagan, "while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values." Instead, "Obama should nominate a sophisticated and tough-minded progressive along the lines of Stanford law professor Pamela Karlan, Legal Adviser of the Department of State Harold Koh, or Judge Diane Wood of the 7th Circuit Court of Appeals."
- Misguided Concession to GOP The Huffington Post's Sam Stein and Ryan Grim write that Kagan "is far more conservative than Stevens and could shift the political dynamic of the high court." They add, "praise from conservatives may sound damning to those who worry that the court is too close to corporate interests and too willing to accommodate the radical expansion of executive power. ... That kind of post-ideological posture certainly appeals to Obama, who presents himself as someone who wants to 'move beyond' disputes between competing interests. Obama has recently moved beyond such disputes by making major concessions to his opponents, as he recently did with offshore drilling and nuclear energy."
- Right-Wing On National Security The American Prospect's Adam Serwer warns of Kagan's "right-wing views on national security," calling her "someone who likely agrees more with Republicans on such issues when it comes to national security. The White House should chose a judge who matches Stevens' intellectual strength, not base their choice on the ever-shifting standards of an opposition party that likely won't support the eventual nominee under any circumstances."
- 'Capitulation' The Guardian's Michael Tomasky sighs, "a possible Kagan nomination is already being read in part as capitulation to moderates and a blown chance to get a real fire-breather on the court. Obama is obviously not going to nominate a fire-breather. That's not who he is."
- More Liberal Candidates Can Get Confirmed Mother Jones' Kevin Drum writes, "the conventional wisdom seems to be slowly congealing that Kagan is the favorite because she's a bit more centrist than the others and Obama doesn't really need a big fight in the Senate this summer. But is that really true? To the extent that he takes politics into account with his choice, it seems to me that Wood is the best choice." Drum goes on to argue that fellow short-lister Diane Wood would be just as confirmable but much more liberal.