Tuesday, May 11, 2010

Why pick Elena Kagan over Diane Wood?

I've seen several conservative commentators saying that Elena Kagan is about as good a nomination as we could expect from Barack Obama. That is probably true. What strikes me is her rather limited record for a Supreme Court nominee. Since she has no judicial experience, analysts have to look to her academic writings to determine her thinking. She has not written much, but Eugene Volokh has taken a look at the articles she has written and finds them quite substantive and hazards a guess that Kagan, on free speech questions, will end up about where Justice Ginsburg is. I would guess that she would end up with Ginsburg on most question. However, she is still a nominee with a very limited paper trail.

If the rumors are correct that one of the other nominees was Judge Diana Wood was one of the other top contenders, President Obama passed up the opportunity to nominate a definite liberal with quite a record that would have comforted liberals who are a bit doubtful of the Kagan nomination. Some liberals are worried, like Jane Hamsher of Firedoglake,that Kagan might be somewhat of a stealth candidate who could end up ruling ways that trouble them.
Or as liberal blogger Jane Hamsher of Firedoglake put it: “Accepting Kagan just because people like Obama is wrong. That’s appropriate for ‘American Idol,’ not the Supreme Court. Nobody knows what she stands for but him.”

The fire from the left Monday was so considerable that the White House came to Kagan’s defense, pre-emptively casting the former Harvard Law School dean as a progressive whose confirmation would not change the balance of the court.

“Elena is clearly a legal progressive,” said Ron Klain, chief of staff to Vice President Joe Biden, who helped oversee the nomination process. It’s a shift from the administration’s rollout of the nomination of Sonia Sotomayor a year ago, when the White House held endorsement events featuring members of law enforcement — and spoke little of her liberal bona fides.
So I was wondering why Obama chose Kagan over Wood who is the darling of the left and would have been one of their favored choices. I am working on the assumption that whomever the President nominated would have gotten through the Senate. I don't think that the Republicans would have attempted a filibuster. They would have needed every single Republican senator to have agreed and there are quite a few Republicans who would not go along with such a move, particularly those members who were part of the Gang of 14. There might have been a lot of sturm und drang over Wood's position on several controversial opinions particularly abortion. But she is still well respected and would have been confirmed.

So why not pick Wood over Kagan? I have a couple of guesses.

1) Perhaps Obama just flinched from the hearings. He knows that the Republican senators would have used the hearings to have explored every controversial opinion that Wood had issued. Conservatives look to nomination hearings as an opportunity for a tutorial for the American people on where they stand on constitutional questions. And Obama and his advisers figured that it would be easier to get through such a moment with more of a stealth nominee like Kagan than one with a long paper record such as Wood. Look at how they posed Sotomayor to seem a moderate appointee who totally spun her "wise Latina" remarks. It is a lot easier to strike that pose with such a lack of a record of what she really thinks.

Then you can add in the relatively positive view that conservatives have of Kagan. They seem rather absurdly grateful for her politeness to conservatives like Charles Fried when she was dean of Harvard Law. It seems rather pitiful that all it takes for conservatives to be impressed with a liberal is that she wasn't rude when they had a Federalist Society meeting at Harvard and that she hired a few conservative professors. I'm with David Bernstein on this. All that means is that she is a nice person and not a vicious partisan. Shouldn't our standards go a bit beyond being so happy that someone isn't nasty.
In short, all we know is that, like Calabresi, Kagan didn’t let her liberal ideological sympathies get in the way of doing her job. She treated all of her constituents, even those on the right, with respect, prevented ideological considerations from dominating faculty hiring policy, and generally put the interests of Harvard Law School above politics.

That’s all great, and from all indications she was a fine dean. But I’m reminded of the conservatives who attended Harvard Law with Barack Obama who lavished praise on him for actually listening to them [literally listening, not agreeing] and treating them with respect when he was editor of the Law Review. Let’s not confuse competence and basic human decency with anything more dramatic. The fact that such qualities are not always on display at places like Harvard doesn’t mean that those who display them deserve anything more than a basic acknowledgment of those qualities, nor that anything more should be read into it.
So Obama knows that Kagan will have a relatively smooth confirmation experience, as did Sotomayor, and that is what he wanted in this election year.

2. However, that explanation doesn't strike me as consistent with Obama's personality. I think he wants to be a transformational president. He knows that his nominations to the Supreme Court will be part of that legacy. If he were truly concerned about the elections, he wouldn't have pushed through his health care reform in the face of public disapproval. And besides, in a midterm election, turnout of the base is key. The liberal base is already somewhat demoralized and that will be trouble for Democrats in the fall. A Wood nomination might have been a spark to help ignite that base.

I don't think he would have ducked a fight over Judge Diana Wood if that is whom he really wanted. So why pick Kagan? So I go with the assumption that he knows quite clearly what Kagan's opinions are. He's been friends with her for almost 20 years. He most probably knows what her opinions are. He already knows that she shares his "empathy" standard of what a good judge should be. In that way, he can stand to her as Bush stood to Harriet Miers by being assured of her opinions while his ideological allies have to depend on assurances that they know where she stands.

She is also reportedly a very nice woman with a friendly personality that could help her to work with her colleagues on the Supreme Court. Perhaps that personality would help her be that person who could fill Stevens' role of trying to win over Anthony Kennedy.

And she is 10 years younger than Judge Wood. Youth is always a plus in judicial nominations.

So Obama gets what he wanted: a liberal who will agree with him on most questions before the Court. And he gets the added plus of a younger, friendly person who will skate through the confirmation hearings. And that is why she got the nod.


Bachbone said...

To believe Obama nominated Kagan without knowing what she believes is to believe Obama sat in Rev. Wright's church for 20 years and didn't know what he preached. The fact that Kagan banned military recruiters from campus is enough to tell me pecisely what she believes, and enough to want her off the SCOTUS list of nominees.

Gary said...

Two comments:
1) We knew that Obama would appoint someone of a liberal bent, didn't we? Maybe Kagan isn't the worst possible choice (at least from BHK's warped universe, he could have chosen Holder).
2) Just a big "THANK YOU" to Betsy for all her hard work keeping this blog going. I read it everyday.

mark said...

On the off-chance that you're interested in facts instead of regurgitating what you hear from Rushbo and Fox news, Kagan did not ban the military from campus:

HLS runs an Office of Career Services and that office helps connect students with certain employers who participate in OCS programs. At some point long before Kagan became Dean, HLS adopted a policy stating that OCS-participating employers had to have robust non-discrimination policies in place. The US military did not comply with that policy, and thus could not participate in the OCS process, but this wasn’t a military-specific policy or a “ban” of any kind.

Indeed, military recruiting has taken place on the Harvard Law School campus via the HLS Veterans Association since the mid-1980s.

tfhr said...


Don't let the facts get in your way~

"[Kagan's]...most significant work is on the Solomon Amendment, legislation that withholds federal funds from colleges and universities when they ban military recruiters because the military’s Don’t Ask, Don’t Tell policy conflicts with many universities’ antidiscrimination policies. As dean, Kagan supported a lawsuit intended to overturn the legislation so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don’t Ask, Don’t Tell."

Check the source on that - campusprogress.org, not Fox, not Limbaugh. Or you could check with NPR, those taxpayer funded radical conservatives actually said, "As dean at Harvard, she cut off campus access for military recruiters because she felt the military's "don't ask, don't tell" policy discriminates against homosexuals. She has referred to the policy as 'a moral injustice of the first order.'" http://www.npr.org/templates/story/story.php?storyId=121712227

Perhaps you can provide us with a link to facts supporting your argument when you get done whining about our source material.

Pat Patterson said...

To cute by half. When the Solomon Amendment was in force she spoke against it and helped file an amicus brief to over turn the Congressional act. Then when she could have allowed the recruiting in that brief period before Solomon was reinstated she refused.

Now just imagine if it was a gay law firm that was banned from campus and only allowed to recruit by affirmatively seeking out info and then meeting off campus to contact applicants. At one of those important turning points in life she took the side of those whose hostility to the military of their own country made them think that the recruiters were no better than the Ku Klux Klan or the Socialist Workers Party. Both of which could have set up booths at any normal Ivy League job fair. Now that hardly seems fair does it?

LargeBill said...


I've heard many of us on the right say something similar to your statement that Kagan is possibly or probably the the best we could hope for from President Obama. That makes me think back to a comment by President Bush about the 'Soft Bigotry of Low Expectations.' :-)

Personally, I think we all have the right to expect the president to name someone who has read and will adhere to the United States Constitution.

Bachbone said...

Thank you, mark, for giving me the incentive to research the topic further. I was wrong in saying Kagan "...banned military recruiters from campus...." The operative word is campus, though, because she did, indeed, ban them from using Office of Career Services (OCS) facilities for a time, a policy instituted before her tenure. Her immediate predecessor, Dr. Robert C. Clark, and Kagan's apologists try to make the fact that recruiters were given a waiver and allowed to use an office in the Law School Veterans Association a plus for them and Harvard when it was Congress that wrote the rules for the military. Why not punish Congress, instead, since Clark admits in a May 11 Wall Street Journal article that he/Harvard realized the military was "not able to sign" the university's anti-discrimination statement? The military objected vigorously, but to no avail. After the Third Circuit Court of Appeals found the Solomon Amendment (which bars federal funds to an educational institution that prohibits or in effect prevents military recruiting) unconstitutional, Kagan barred military recruiters from OCS offices the very next day.

Clark, Kagan and her apologists suggest the facilities in the Law School Veterans Association were equivalent to the OCS. This reference by Tom Goldstein makes clear its substantial disadvantages: "The veterans group responded that it would attempt to coordinate recruitment to some extent by email, but it cautioned that it had 'declined interim options to establish formal liaison relationships, sponsor regular on-campus military recruiting fairs, coordinate interviews extensively, or perform other equivalent functions. Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. Moreover, such copious involvement would dramatically constrict our ability to organize other, non-recruiting events. The above email address falls short of duplicating the excellent assistance provided by the HLS Office of Career Services. We sincerely hope, however, that it satisfies some needs of our interested classmates and that they feel entirely comfortable in approaching us as peers.'"

Even after SCOTUS overturned the Third Circuit's ruling, Kagan relented only when then-Pres. Bush threatened to withhold federal funds, then she allowed the military back into OCS.

Goldstein and others do not believe Kagan to be anti-military for those actions. Goldstein also mentions Kagan hosting dinners at Harvard for veterans.

Some also believe she can be faulted for immediately reinstating the OCS ban, and for stating in a letter to the Harvard community how much she "regretted" giving the military the waiver, and hoping it would not decide to push to withhold funding from the university.

Then-President Bush did threaten to withhold federal funds, and Kagan decided to follow the SCOTUS ruling. Kagan's apologists say she has simply folowed the law that was in effect each time re: military recruiters using OCS facilities. But Clark and Kagan both clearly refer to the loss of hundreds of millions of federal dollars in their decisions to allow the military recruiters back onto OCS facilities. Harvard's endowment is, from what I have read, in the multi-billions, which it never touches. If its principles are uppermost in its decisions, why worry about a few hundred million dollars? One wonders what Kagan would have done had Bush not threatened.

mark said...

Nothing "cute" about it. Criticizing her for supporting the policy is legit. Continuing to say she banned the military from campus is not. Whether not it was an honest mistake, I've now provided the truth (don't thank me, my pleasure). To her opponents, the lie sounds better. Obviously, you're free to keep perpetuating it. From some of you, I would expect nothing less.

tfhr said...


It cracks me up when bald guys try to split hairs. Your claim was disproved and remains unsupported.

At the heart of it, as Betsy pointed out in her "Kagan on the First Amendment" post, Obama's acolyte and Solicitor General finds controlling access to information (the First Amendment) to be subject to the "categorical balancing of the speech against its societal costs".

In the context of assessing her suitability for the Supreme Court, the evidence suggests that Kagan's view of The Constitution is guided by political expediency rather than the principles and rights guaranteed in the document and its amendments.

mark said...

You're welcome, Bachbone. Always glad to help.