May 10, 2010, Let the post-constitutional era begin
I have little to add to what Greenwald or Paul Campos has about my college classmate and President Barack Obama's choice of Elena Kagan as his nominee to replace retired Supreme Court Justice John Paul Stevens.
The Cliffnotes version is that, like Barack himself, Kagan has left virtually no paper trail, and, as an ideological matter, is a complete tabula rasa (that's pretty much code for "stands for nothing") but has convinced smart glib people that she is smart and glib, and as a Harriet Miers-like cipher and loyal retainer won't give Barack too much trouble in the nominating process, and most especially, as any kind of irritating progressive or anything.,
As Solicitor General, her job has been to carry the Administration's water, and if that means adopting the Bush Administration's totalitarian view of executive power, then she has been a good soldier and adopted it (even as lower ranking and irritating people like Greg Craig or Phil Carter, who weren't so jiggy with the program, didn't go with the program so much, and left to spend more time with their families and all). And she's been peculiarly good at doing what she's told.
In short, Ms. Kagan is a well-credentialed Harriet Miers. Only unlike Harriet Miers, she... has better credentials,.. oh, and Barack Obama isn't George W. Bush. Even though Miers would without doubt have been a more pragmatic figure, and certainly could not have been worse than Scam Alito, and was around ten years older than him to boot... liberals were too interested in embarrassing George W. Bush and political gamesmanship to see the possibility of replacing O'Connor with a decent justice,... Republicans knew that Miers would be another Souter...and trashed her. Why are their eyes on the prize, and Democrats always falling in line like screaming teenage girls at a rock concert?
So we will have Ms. Justice Miers Kagan on our Supreme Court for decades to come, where she will be a far more programatic automaton of "rationality" (read "right wing positions") than the actual Republican John Paul Stevens whom she is replacing. And right now, we're talking about indefinite detention and liquidation of the enemies of the state... just this week, we're talking about ending the reading of rights to criminal suspects, because of a feeble attempt at a terror attack somewhere. We will need people of stature on our Supreme Court to act as a bulwark against this rapid, populist slide to dictatorship. And Ms. Kagan will not be such people. .
Honestly, I wish President Obama had nominated Bob Bennett (I hear he has some time now)... for one, a Republican ex-senator from Utah, shouldn't have much trouble getting through the Senate (Mitch McConell might not even filibuster him)... but mostly, because I'm sure that once in a while he'd vote his conscience, because unlike the record-less Ms. Kagan, at least I'm certain that he has a conscience.
Did I say that out loud? I realize that Ms. Kagan hails from a Jewish intellectual tradition here in New York, got really good grades and went to the Ivy League, and favors abortion on demand and Brack nominated so I'm supposed to rally around her, Sorry. Can't.
You see, the Supreme Court has, throughout American history, tended to be the most conservative, (both small and large c) branch of government, famously upholding the rights of slave owners or striking down Progressive or New Deal social legislation... but every so often, we'd get a Brown v. Board of Education, or the civil rights advancing cases of the 60's and 70's... or even the Guantanamo cases... when the Supreme Court stepped in to prevent social collapse through an advance of rights under law. Yes, the courts all too often exist to preserve the rights of the rich and powerful... but every so often, they get in the powerful's way in the interest of fairness, because if the members of the public don't feel they are treated fairly, they will take to the streets with Molotov cocktails and man the barricades. In the last two or three decades, since the public largely became obese and medicated, the powerful feel they have less to fear... and well,.. here we are.
And so we will hear crap about how hard it will be to confirm Ms. Kagan, whether or not she is a crypto-lesbian (seemingly now a requirement to be appointed to the Court by Barack Obama), and of course, whether she favors abortion on demand (maybe). Who. The. F***. Cares?
It's over, folks. It's been over for a while. The Constitution, or at least, the illusion of it, All hail Elena Kagan. Let the post-constitutional era begin. ,