Saturday, May 15, 2010

Let Me Count the Ways

Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?  OK, maybe those members of the LGBT community who believe (rightly or wrongly) that she is one of them.  Anyone else?  Never-robed members of the Harvard and Yale Law School faculties who dream of sitting next to Clarence Thomas and Steven Breyer?  Perhaps.  But seriously?

Jews?  They're already represented way out of their proper affirmative action level (which would be about 0 since they're about 2% of the population).

Liberals?  We know they're unhappy.

Civil Libertarians?  Nope.

Those who favor . . . what?  Accommodation?  

Those who believe she can go toe-to-toe with Scalia?  Maybe she's smart enough, but does anyone think she has the inclination?

Those who want a lawyer who's actually represented people?  Uh-uh.

Those who think that the Court should be made of people who have no particularly strong feelings, no attitudes other than self-promotion, who are looking for someone who'll basically leave Obama alone to do what he wants and won't fuck around with affirmative action (which is what Dahlia Lithwick observes Richard Epstein told JeffreyToobin)?  Sure.  But that's His Barakness and I suspect nobody else.

Oh, there's a pretense of enthusiasm, of course.  But really, it's a sham and everyone knows it.
Lithwick's real point was that Obama doesn't have much of a jurisprudential philosophy.  That's probably true, a bit peculiar, perhaps, for a former professor of constitutional law, but then that was just a blip and a sideline for the Man.  What I think is more true, and what certainly seems clear from the total lack of energy he and his administration seem to have put into finding, nominating, and getting confirmed lower court judges, is that Obama simply isn't interested in the courts.  

Let's take a serious, albeit brief, look at the guy.

He likes big sweeping rhetoric and big sweeping programs, but he doesn't much care about the details of the programs.  He'll happily trade away every detail as long as he gets the big sweeping part.  (That, after all, is the real lesson of health care and of the non-stimulating stimulous package.)

He's a tough-on-street-crime Democrat, supportive of the death penalty even for those who don't kill (that's what he said, criticizing the decision, after the Court limited death sentences to killers in Kennedy v. Louisiana.

He probably thinks Gitmo should be closed and Don't Ask Don't Tell be repealed, but not if doing so might be really really complicated.  He thinks Miranda rights should be reserved for those who aren't thought to have done really bad things.  Ditto for Fourth (and one assumes all Fifth and Sixth Amendment rights).

He thinks it's OK to blame BP and Haliburton for not taking responsibility for the mess in the Gulf, but he hasn't exactly found any consequence he wants to impose on them.
He is, then, it seems an accomodationist.  He's not a liberal.  He's sure as hell not a firebrand.

Obama ran a campaign based on making everyone think he was really what they were.  Liberal? Sure.  Moderate?  You bet.  Conservative?  A surprisingly large percentage of the time.  And he'd bring us all together because he didn't care about the details of program so he'd let the republicans decide the details of the programs the democrats would pass.  

Everyone would be happy.

Didn't work out, of course, but that, I suspect, is the reality of Elena Kagan.

She has the appearance of difference (no judicial experience) without actually being any different. Except that she's probably more conservative than the Justice she's tapped to replace.  But it's hard to know, because she's never actually taken a stand on much of anything.  Certainly not in the last 15 years.

Me? I'd like a civil libertarian who represented criminal defendants and little guys injured by big guys.  Someone who did it with passion.  Someone who did it without making too much money at it.  Someone who did it because it was right.  There's a marginal chance such a person, if chosen carefully, could actually get confirmed by the Senate.  There's not a hope in hell such a person could get nominated.

So I ask again,
Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?
The answer, of course, is a resounding "NO."  That's why Obama nominated her.

And that's a damn shame.

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