Will Kagan Pursue a “Liberal” Agenda?

The attempts to frame Elena Kagan pre-emptively as a wild-eyed, party-line liberal, socialist even, and quite possibly a lesbian who “looks like she belongs in a Kosher deli” (wink, wink, you vestigial anti-Semites), started long before President Obama uttered her name as his second pick for the Supreme Court.

On day three of the confirmation hearings, in which Judiciary committee Chair Patrick Leahy (D-VT) plans to conclude the ritual grilling of the fourth woman ever nominated to the U.S. Supreme Court, no one on either side of the aisle seems to imagine a scenario in which she won’t be confirmed.

The right did add creative new disparaging talking points, including a bobbleheaded attempt by Senators John Cornyn (R-TX), Jon Kyl (R-TX), Jeff Sessions (R-AL), and Charles Grassley (R-IA) to disparage the late Supreme Court Justice Thurgood Marshall, (for whom Kagan clerked). Evidently the faint hope that racism will rise again—not that it ever went away—is enough for some like to impugn the Court’s expansion of civil rights to Americans who don’t all look like these gentlemen.

For the Democrats, even the Brooklyn liberal Senator Chuck Schumer hewed to the Obama administration’s well-trod middle ground path, assuring one and all that Kagan is a mild-mannered, “modest” moderate who wouldn’t dream of pushing the Constitutional envelope.

Unfortunately, Schumer’s talking points appear to be way too close to the truth, and that’s not so good for the country.

Obama Opportunity Missed
While the progressive Netroots might have hoped President Obama would appoint truly liberal judges, or at least solid civil libertarians, they have been swiftly disappointed. One thing Obama has in common with George W. Bush is a wide streak of political luck. How many presidents get to appoint two Supreme Court justices at all, let alone during the first half of their first term? Even Bush’s vaunted luck didn’t carry him that far.

But whereas Bush used his initial years in office aggressively to reshape the entire Federal judiciary to his ultraconservative specifications going as far to the right as possible without falling off the end of the flat earth, (absent a Supreme Court opening until his second term began in 2005, Bush made hay moving to fill the 100+ lower court vacancies Bill Clinton gifted him), Obama blazed a timid trail even before his filibuster-proof Senate margin evaporated in a poof of Brown smoke. Bush, on the other hand, didn’t give a fig who opposed him because he knew the president held the keys to power even during the years that he had fewer than Senate 60 Republicans.

And then of course, he appointed Chief Justice John Roberts and Justice Samuel Alito who have already pulled the court far to the right with such rulings as Gonzales v Cahart and Citizens United v Federal Election Commission giving corporations personhood rights while truncating those of women.

Court Desperately Needs Rebalancing
The court needs to be rebalanced by new liberal justices to bring it back to the center. Obama’s first pick, Justice Sonia Sotomayor meets the center-left test but leaves many questions about basic civil liberties unanswered because she has declared (and shown) herself to be such a stare decisis judge. And since today’s stare decisis has been decided by a generation of increasingly conservative-activist judges, the balance that has kept our constitution functional through centuries of sweeping social, technological, and political change is tilting dangerously to the right.

In the New York Times Magazine article, “Imagining a Liberal Court,” Noah Feldman, Harvard Law School Professor and author of the forthcoming Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices opined “After decades of stagnation, progressive constitutional thought is reaching a crisis point. And when it comes to issues of women, reproductive rights, diversity, affirmative action, and gender, Kagan has been dubbed “gender lite.”

Her record on and “modest” or perhaps more properly mealy-mouthed reply to Sen. Lindsay Graham (R-SC) (see video) concerning reproductive rights jurisprudence certainly gave me no cause for celebration.

On Day Three of Kagan’s confirmation hearings, the Republicans will again pepper her with the kind of questions designed rhetorically to paint her as a justice who will pursue a liberal agenda.

We should be so lucky.