Legal Commentary

Will Elena Kagan Move Court to the Right?

By Jeralyn

Law prof Jonathan Turley fears Elena Kagan will move the Supreme Court to the right, especially on civil liberties and support for Bush-era policies:

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

He also makes a point I made last night: Obama has never been the liberal that liberals thought he was. [More...]

Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.

I'm still being pragmatic about this nomination. I wonder if Professor Turley and others so disappointed about Kagan would would rather Obama appointed his reportedly second choice: Former DOJ top prosecutor (now an appeals court judge) Merrick Garland. To me, the thought of three Supreme Court Justices so heavily molded and entrenched in their prosecutorial view of the world and constitutional rights(Alito, Roberts and Garland) is nothing less than frightening, and of far greater concern than Elena Kagan.

On a related note, I just did a Lexis search for opinons by Garland. How is it possible he's been a circuit judge on the D.C. Court of Appeals since 1997 and has written only a handful of opinions? Does he write them under another name or did I miss them? Seems to me his nomination was a reward for the OKC bombing prosecution which as Principal Associate Deputy Attorney General, he oversaw from his office in Washington. McVeigh's trial began in March, 1997. Garland was appointed as a federal appeals court judge in April, 1997.

What was Obama thinking in making Garland one of his top choices for the Court? That Republicans would heartily agree and confirm him?

I don't expect Elena Kagan to be a champion of liberty, but I do think we could have done worse.

As to President Obama, I wonder how much of his rock star following he'll lose when running for re-election. I agree with Turley (assuming I am interpreting him correctly) that he's not just being pragmatic, he's showing his true centrist colors. But, you can't say he didn't warn us. While others remember "hope and change" as his mantra from 2008, what I remember most is "There are no red states, there are no blue states, there are only the United States." He's always been about bi-partisanship and compromise and I don't know why people expected anything different from his Supreme Court picks. And at least it's not John McCain doing the picking, then we'd really have something to complain about.

Full post as published by TalkLeft on May 11, 2010 (boomark / email).