oleeb's picture

    Obama Trades Rule Of Law For Easy Confirmation Of Kagan

    By his nomination of Solicitor General Kagan to the SCOTUS, the nominally Democratic President of the United States has closed the door on restoration of our republic dashing the hopes of millions who had voted for him precisely because he said he would restore the rule of law.  Once again we see a weak President, highly averse to any conflict at all with the Republican Party (mostly ecause he agrees with them) who prefers choosing what is politically expedient for himself over what is best for the nation and those positons he claimed he supported while campaigning to become President.  Kagan's enthusiastic support for unconstitutional and transparently illegal powers based upon the flimsiest right wing legal theory means that Obama is sealing the fate of the nation on a vast array of issues central to the liberty of our people and the survival of our birthright as a free people.  Make no mistake, Kagan represents exactly the sort of politics Obama himself believes in: an imperial state led by a leader with powers more akin to a Roman Emperor than a citizen elected to excercise limited power as Chief Executive of a constitutional republic.  As a citizen and patriot loyal to the constitution first and foremost, this is an entirely unacceptable nomination.

    Since the moment of his election he has supported and sometimes even expanded every illegal usurpation of authority asserted by the extremist Bush administration and wraped himself each and every time in the flag as tyrants and despots are wont to do.  This man's administration embraces Nixon's discredited theory that "if the President does it, that means that it is not illegal."  Kagan embraces this view as well.  Obama claims the power to murder American citizns on his word alone, without charges of any kind and outside of any legal process at all.  He claims that if the President determines a citizen to be a terrorist then he can order that citizen killed willy nilly.  I wonder how many people know that the charge of "terrorism" was one of the most commonly used by Stalin to imprison and murder those he viewed as political opponents?  It is clearly not legal in our country for any President to order the killing of a citizen, let alone the killing of a citizn on his word without any due process of law and certainly no process even resembling our long established legal system for charging and sentencing people.  That is a power possessed by absolute monarchs of the kind this nation rejected in 1776 and which any honest reading of our Constitution would prohibit.  The title of President is not synonymous with that of King or Emperor and quite deliberately so. 

    Politically ambitious lawyers like Kagan have been willing to distort the plain meaning of the Constitution and intent of our founders by supporting the illegitimate legal claims of those who seek to usurp the power of the Constitution and of the Congress and judiciary on behalf of the executive branch.  Kagan's enthusiastic support for the usurpation of authority by the executive branch is well known and very disturbing.  She will be joining the other poltiical hacks on the SCOTUS in order to forever enshrine these UnAmerican and Unconstitutional policies as legal.  It is an obscentiy and an affront to our heritage as a nation of laws and not of men that he should now ensure that these crackpot usurpations will be guarded assiduously not only by the Republican hacks on the SCOTUS but also by the Democratic hack: Elena Kagan

    Those who love liberty and value the structure and principles of our republic established so many years ago and maintained until just a few years ago should raise their voices as one against this outrageous capitulation to the national security state and to the protofascist elements in the Republican Party that have put forward this affront to the United States Constitution.  Instead of reigning in the extremist right, Obama is ensuring it's continued expansion in the future by putting a bipartisan imprimatur on all of the specious and tyrannical legal theories and assertions of the Bush years.  This is the coup de grace of Obama's unnecessary, cowardly capitulations to those extremist measures he was elected to roll back.  With any luck at all the fawning, toadying progressive Democrats of Washington, who have supported with their silence Obama's repeated unwise and unlawful decisions regarding the national security state and the mythical war on terror will now rise up in opposition and let his Imperial Majesty know that the continued pursuit and preservation of the necon vision of empire and endless war that was unacceptable under Bush is just as unacceptable under Obama.  This decision can only be interpreted as the final "fuck you" by Obama to progressives and progressives should not hesitate to return the favor by standing up to be counted in opposition to his Republican Lite policies from now on.

    Comments

    Before I went to bed last night I peeked at Huffpo, and saw they had her appointment as a Done Deal. We could see it coming like a freight train (via Mike Allen at Politico). History may see it as his signature move; Kagan is young and the Court will bear her stamp for possibly decades.
    This morning when I logged on, I was dismayed to discover it hadn't been a nightmare; there was her picture everywhere, mocking those of us who had hoped to have a Unitary Executive reigned in; who were hoping against hope that Kagan was a feint, and Obama had appointed a potential Next Liberal Lion; maybe Diane Wood.
    Or that he'd even gone with Jennifer Granholm, having told us that she might be more 'of the People' as a Justice.
    This is a Bad Day for the country.

    Glenn Greenwald's case against her is here:

    http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan


    Again, and again, and again, Greenwald in his article itself and in defenses against attacks on his article, trumpets his shattering revelation that we don't know enough about her. Apparently she was politically savvy enough to realize that in the supercharged atmosphere of recent years, she had better not make too many sweeping judgments about Constitutional Law if she wanted this job, or very obviously she would never be considered.

    For Greenwald, that is everything! Where are those sweeping judgements??!! Without them, liberals have no guarantee they can take to the bank! Aha, exposed! His article is sophomoric, plain and simple. There may be good arguments against her. Greenwald made a fool of himself instead of finding them.


    Did you read the links? Especially about her support of Unitary Executive power?

    Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly.'
    http://www.prospect.org/csnc/blogs/tapped_archive?month=04&year=2010&base_name=filibuster_follies_draft

    http://bench.nationalreview.com/post/?q=Y2ZjNDY4OWJmYzJlNjQyNTMyZjZkNTkzOTEwZGI3MGY=

    Quite an argument you make for a Supreme court Justice here:

    'Apparently she was politically savvy enough to realize that in the supercharged atmosphere of recent years, she had better not make too many sweeping judgments about Constitutional Law if she wanted this job, or very obviously she would never be considered.'

    'Politically savvy enough'; here I was hoping he'd appoint someone who would take the Constitution seriously.
    Silly me.


    It just occurred to me that your screen name contains 'Overreach'; am I wrong in thinking you may have chosen it as it pertained to George W.'s
    Presidential Overreach?
    If so, are you comfortable with *this* President's history of 'overreach'?


    and now, further right we lean


    First.
    Think.
    Who will she replace?
    What did everyone say back then?
    Which way was he expected to lean?
    After being seated, which way did he lean?

    Stevens was nominated by Ford, I believe, and at the time was a moderate right leaning republican. His nomination was seen as a step towards a more conservative court. But Stevens fooled everybody.

    Today, Stevens is regarded as the left most, liberal justice on the bench.


    Bull...Greenwald's sourgrapes and this author- do not take into account that she was a rule of law prof- Ruled the Harvard Law school with the imense egos and has a sense of humour...
    We have two currently sitting on the bench that served less than two years as judges before appointment and THEY GAVE US CORPORATE PERSONHOOD!


    Don't spoil the ObamaNot Pity Party. Pluuu-eeeze!

    The 'sky is falling' Glenn Greewald, who reminds one of that Peanuts character who always has the cloud over his head, at the link above, says Kagan's main problem is she does not have a 'clearly progressive' record on tap to make her a slam dunk anchor on the left, like a new Thurgood Marshall. Does Greenwald think anyone with a clearly progressive record on all topics would ever be confirmed?

    I'll settle for her pro-choice, anti-discrimination stances and agree with Beetlejuice that once on the Court she may do well.


    "Once again we see a weak President, highly averse to any conflict at all with the Republican Party (mostly ecause he agrees with them)..."

    I think that's an important point, Oleeb. Obama is not trying for "the art of the possible" or anything of the sort. He is acting on his beliefs. To assume otherwise is wishful thinking.

    In a world where Republicans are less crazy than they are now, he'd be one. It's only the Republican lurch rightward that makes Obama seem left of center.


    Selecting Stevens’ Successor

    Politics recedes as a critical factor

    By Tom Goldstein, SCOTUS Blog,
    Tuesday, April 27th, 2010 11:03 am


    In my February post on the nomination process....

    [.....]

    When I wrote that post, the Administration’s political fortunes differed from present circumstances in at least two ways.....The Administration has more capital to expend now, if it wants. Second, it has had the opportunity to gauge Senate Republicans’ reaction to the “short list” of names. That reaction has been distinctly muted.

    Given the changed circumstances, I’m now ready to update my assessment and conclude that in light of the changed political climate I think that the President will nominate . . . . Elena Kagan. I just now think that politics will have less to do with the choice.....

    http://www.scotusblog.com/2010/04/selecting-stevens-successor/


    Wendy and Oleeb, your depth of hostility and ignorance is staggering.

    As to the comment that the SG's brief in Citizens United proves she's a baaaaaaad librul, realize that the Supreme Court she was arguing before was the four horseman of kneejerk conservatism and Tony Kennedy, who occasionally sides with the left bloc. The brief of which one of you has complained was written for Kennedy, to try to sustain campaign finance law.

    I am so sick of people who don't know shit about law yelling about how this position or that position a lawyer took is proof of their deep convictions. Of course when you're arguing to the Supreme Court, you're trying to get the best result you can. It's not some exercise in moronic purity troll whining (as here) where you take the most librul position just to show you're the bestest librul.

    You're actually trying to win something that matters in the real world and keep campaign finance law intact *to the extent you can*.

    Wendy's use of the phrase "Unitary Executive" is worse. It doesn't mean what you think it means, and Kagan has never argued for it. What you're *trying* to say is that you don't share her view of executive power. Of course, see above, one brief in the Supreme Court doesn't equal "her view" anyway, but even assuming it did, she's never argued for, and won't as a justice argue for, the Unitary Executive.

    Go read a lot. An awful lot. Try hard to find something besides Glenn Greenwald to read, so you're not relying on one editorialist's disagreement to mindlessly throw back. And then come back and discuss the Unitary Executive. Because Obama isn't it, and Kagan doesn't favor it. You just haven't learned basic concepts well enough to know that.

    This blog post is like cotton candy spun from something much less edible than sugar. Full of air, signifying nothing. It is specific enough to merit an am not, are too kind of response. It is too vacuous to engage textually.

    The idea that Wood is more librul than Kagan is laughable. But then, I've read the written work of both. They're both actually liberal jurists, and both would or will do a great job there. Neither is liberal like the crazy comments in this blog or thread; even Goodwin Liu isn't nearly as far left as you all are. Just click your heels until you're back in Kansas, kids. Cheers.


    Greenwald has certainly been the most consistent and principled voice favoring an actual progressive be appointed to the Supreme Court. I find the following excerpt from his column today sums up the reality very well:

    "The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

    Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her). As Kevin Drum writes:

    [R]ight now Obama has the biggest Democratic majority in the Senate he's ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? . . . . When Obama compromises on something like healthcare reform, that's one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn't have to do this. Unfortunately, the most likely answer is: he does it because he wants to."


    IOIYAO


    Wrong. Stevens did not change with time: our political atmosphere changed and he remained constant. This demonstrates just how far to the right our politics has gone and why Obama is so foolishly and willingly helping to keep moving it in that direction.


    The only problem with all of your very superior arguments and your vast knowledge is that all the criticisms of the left about Obama have proven to be quite accurate and true in every case. You just don't like criticism of Dear Leader. Too bad for you and for our country which will suffer for years at the hands of this Republican President in Democratic clothing and the neocon hack he is putting in a positions of great power on the Supreme Court.


    Just to clarify:

    Greenwald does not want a "progressive." He wants an ACLU civil libertarian justice. Greenwald came out in support of the Citizens United decision. While I agree with him on Kagan, it helps to remember that he is not a classic liberal, and when his legal scope moves beyond the bounds of individual rights, he tends to skew libertarian.


    And here's a brief segment of what Prof. Jonathan Turley had to say on his blog about the nomination:

    "President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.


    For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration."


    Actually, early in his tenure he was not so liberal. He shifted his stance on free speech protections for obscenity, affirmative action, and he voted in favor of reinstating the federal death penalty. He has shifted because of the rightward political tenor, but has become more left due in part to the federalist schemings of the Rehnquist court.


    Read the links on her handling of that mess; not just Greenwald's doing the digging and opining; he has up some defense of her at Salon. Go look.
    Amy Klobuchar had quipped at Kagan's SG hearings that the Republicans loved her soo much that she was surprised they hadn't given her a standing ovation. Now, you can read their love several ways; me, I'm going with 'they like her on War on Terror issues, DADT non-repeal, in favor of the Defense of Marriage Act', etc.


    seen this yet:


    In the wake of the Times Square bombing plot, the Obama administration said on Sunday it wants to work with Congress on possible limitations of the constitutional rights afforded terrorism suspects — even for American citizens.

    Attorney General Eric Holder said changes may be needed to allow law enforcement more time to question suspected terrorists before they are told about their Miranda rights to a lawyer and to remain silent under interrogation.


    http://www.google.com/hostednews/ap/article/ALeqM5jAz5HTbaFcgiGhmbogdxlE2QCDzQD9FJFQLO0


    Had to google that one. 'Close you eyes and imagine X saying this, doing this, then...'


    Oopsie; just went to Turley's site; here's the link; he says it's a developing piece, of course.

    http://jonathanturley.org/2010/05/10/obama-to-nominate-elena-kagan/


    You could have spelled it out so the rest of us didn't have to google, too!

    "It's okay if you're an Obamican" for those of you who don't have all day to try to figure it out or are either too lazy or don't think to google it!


    our political atmosphere changed and he remained constant

    So "the silent majority" was really mostly liberal? Who knew, I wish someone had told me at the time.

    Your argument would make more sense if you had said that the makeup of the court itself changed around him.

    P.S. Even so, see Jeffrey Rosen, The Dissenter, Justice John Paul Stevens," New York Times, Sept. 27, 2007: I asked whether he still considers himself a Republican. “That’s the kind of issue I shouldn’t comment on, either in private or in public!” he said with a smile.


    You are right that not long after I opened the pdf Glenn provided, I bailed out. I've been reading opinions all morning; the sum total must have made me hysterical.

    Armando Llorens explained it like this in 2006.
    http://www.dailykos.com/story/2006/1/10/122117/

    He agrees with you about her possibly being progressive on that issue; we'll see, I guess.
    Obama wants Congress to limit rights of detainess; Jeralyn Merrit is hoping Congress bucks him, and that Kagan would, too. Dunno about that.



    He did ask for memos that would underpin his right to kill US citizens abroad, plus drug lords and others if two reliable sources declared them 'involved with terrorists'.


    And of course this should be no surprise to anyone. Obama has never had much sympathy for civil livbertarian ideas.


    Not that I expect the hand-wringing from you and oleeb to ever end about anything Obama-related, but this is a pretty compelling defense of Kagan:

    http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chance


    These are the kinds of things one expects of cowards and despots who not only don't believe in our tried and true system of justice based upon the Constitution, but who wish to dispense with all the inconveniences it imposes on authoritarian tyrants like themselves. What possible advantage, other than political pandering to the extreme right does such a move offer us as a society? Not a God damned thing that's what. But it does open the door even further than it has been opened to tyrannical and despotic abuse of authority by the government and entices authoritarians to expand the use of that power in the future.


    It isn't hand wringing: it's opposition to Republican and authoritarian policies.


    I see it a bit differently than that AA. The entire political spectrum has been pushed so far right since 1980 that people who, when they were in office, were considered dangerous right wingers (like Nixon) would now fall into the category of liberal---not because they are actually liberal at all, but because the spectrum has gone so far right that people who actually were liberals like FDR & Truman would be considered far left. So no, the Silent Majority was not liberal, but compared to the extremist right wing lense through which our politics is now defined it would appear that way if you didn't realize how the perspective had changed over time. The players on the board didn't change their position. The position of the board itself was changed and in large part it was weak politicians like Obama serving over the past thirty years that allowed that to happen.


    I did mention above that Glenn had posted it; i posted one from Big Tent Democrat. We'll see.
    I really try to refrain from labeling you and your inevitable support; I could wish you could leave off with the barbs. If you have a case to put forward, do it.
    The other stuff gets tiresome, and gets us nowhere; plus, I have a nasty headache, and I'm irritable as hell this morning.


    Actually, it should come as a surprise. I view the Citizens United Case as a Dred Scott level abomination. Greenwald is not a progressive. So saying he wants a progressive voice is a misstatement. Greenwald wants a libertarian, but will settle for a progressive that shares his civil liberties values. The fact that he supported the Citizens United decision should be noted in that regard.


    Actually, despotic and tyrannic would be bypassing Congress and issuing an executive order that expanded the definition of the public safety rule for Mirandizing suspects.

    Going through Congress with an unpalatable proposition may be negative, but it is not despotic or tyrannical. They are going about something you and I don't like in a manner befitting the Constitution.


    "The other stuff gets tiresome, and gets us nowhere"

    You don't know from tiresome.


    Kagan appears to be an excellent choice. In the views of many analysts, she is the best qualified to negotiate SCOTUS decisions that result in 5 votes (Kagan, Breyer, Sotomayor, Ginsburg, Kennedy) against 4 (Roberts, Alito, Thomas, Scalia). Other candidates, such as Diane Wood, were considered less able to attract that 5th vote to the more liberal side of the Court. It appears that Obama is more of a visionary than some give him credit for being, which is probably one of the reasons he has so often proved a winner after others have predicted his failure.

    Of course, we'll have to see. When Scalia was nominated, conservaties rejoiced in the prospect that his intellectual skills would bring liberals to his side on contentious issues, guaranteeing a majority, but his ideological fervor alienated potential allies on the left. It took the resignation of O'Connor to consolidate the rightward drift of the Court.

    The NYT had a reasonably informative piece on Kagan at http://www.nytimes.com/2010/05/11/us/politics/11court.html?partner=rss&emc=rss&src=igw


    Lordy! ...And I thought I was pompous!


    Obama should have been a Republican. He's enthalled with the establishment.


    Thank you, Doc. As so often.


    "I am so sick of people who don't know shit about law yelling about how this position or that position a lawyer took is proof of their deep convictions."

    Wait, but Greenwald's piece was researched by *Second Year Law Student* as he trumpets so boldly and proudly!! That *HAS* to make him right, doesn't it? Doesn't it?!



    "I really try to refrain from labeling you and your inevitable support; I could wish you could leave off with the barbs. If you have a case to put forward, do it."

    That is quite a turn around from this

    "It just occurred to me that your screen name contains 'Overreach'; am I wrong in thinking you may have chosen it as it pertained to George W.'s
    Presidential Overreach?
    If so, are you comfortable with *this* President's history of 'overreach'?
    Posted by wendy davis in reply to a comment from wendy davis
    May 10, 2010 8:43 AM | Reply | Permalink"


    Well, the part of the man's comment wherein he wearies of our born-overnight Constitutional law experts' analysis rings true to me.


    So, Stevens is a Republican nominee, who became in the more liberal minority but who tried to forge consensus and had some success.

    Now if we replace him with a liberal nominee, every single decision, every last one, no exceptions, will go against us. Always. Just mentioning.


    atleast you are not claiming she's liberal


    Come on, nonsense. Greenwald is a Constitution-following progressive.

    But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws.... Does anyone doubt that the facts that gave rise to this case -- namely, the government's banning the release of a critical film about Hillary Clinton by Citizens United -- is exactly what the First Amendment was designed to avoid? And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?

    People bond together for greater effectiveness - if the Joads and other grape pickers aren't allowed to band together, which the orchard owners forbid, well they can practice individual speech all they want to little use.
    Try re-reading Greenwald's opinion again - as he notes, the First Amendment isn't decided on outcomes, it's decided on principles. If you believe in the right to bear arms, it applies to teabaggers and Black Panthers alike, and just because too many people are choosing to bear arms or people are getting killed doesn't alter the validity of that interpretation - you have to alter the Constitution then to fix it unless you can show that that right is limited by some other important precept in the Constitution. I don't much like the decision, but then the Swift Boat campaign and the political hunting of Bill Clinton occurred through the the use of personal fortunes that wouldn't be limited anyhow. The system is skewed, it will remain skewed, it's just a question of which dimensions, which direction.
    http://www.salon.com/news/opinion/glenn_greenwald/2010/01/22/citizens_united
    http://www.salon.com/news/opinion/glenn_greenwald/2010/01/23/citizens_united

    So, at the end of the day, what do we know? We know that Kagan is a centrist without much of a record. We know she might be liberal on the hot button social issues, but also that she might find in favor of conservatives on other important aspects of America's future.

    Most importantly, we know that we elected Obama so that he could leave a powerful liberal legacy on the Supreme Court after his middle-of-the-road unaccomplished presidency was finished. We know that he let us down.

    http://www.huffingtonpost.com/emma-rubysachs/a-liberal-analysis-of-ele_b_570588.html


    No, and I stand fully behind what I just said. If someone more liberal or more discoverably liberal is nominated, we will lose absolutely every single case to the 5-4 reactionary majority, bar none. And that would be your self-destructive recommendation, and of your view on this there can be utterly no doubt.

    If you disagree with the above, I'd be happy to hear your specific arguments. Irrelevant snarks don't add much, though.


    In this instance, the always estimable Zipperupus has grossly oversimplified Glenn Greenwald's complicated reaction to Citizens United.

    The case, Citizens United v. FEC, presents some very difficult free speech questions, and I'm deeply ambivalent about the court's ruling.

    Most saliently, Glenn Greenwald doesn't give a flying fuck about the short-term outcome of upholding the Bill of Rights.

    Critics emphasize that the Court's ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy.

    But...

    The "rule of law" means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like.

    Courts make this choice every day, by applying Miranda, for example, and throwing out the confessions of people that everybody "knows" should go to jail.

    If "progressive" means overthrowing the Bill of Rights every time preserving the Constiutution would produce an outcome that progressives don't like, then I'm sending back my progressive decoder ring and resigning from the club!

    The real solution is banning political advertising on TV for every legal person, and it's a perfectly Constitutional limitation under "equal protection" of the Fourteenth Amendment.


    That's the whole (enormous) difference between the anticonstitutional theory of the unitary executive, and someone disagreeing with the executive asserting policies they wish it wouldn't.

    Unitary executive = violates separation of powers by evading judicial and congressional review specifically by denying those branches' authorities to so review.

    Bad executive = everything else.

    People here who critique Obama's DOJ, especially nonlawyers here, constantly conflate their disagreement with DOJ/executive positions on one hand with the espousal of the theory of the unitary executive on the other hand, because they honestly don't know what unitary executive means, and because Greenwald conflates the two thoughts on purpose.

    Obama's DOJ and Kagan never espouse the unitary executive theory. People here who say so are either lying (less likely), or more likely, simply misdescribing their own criticisms of DOJ because they don't understand the concept.


    If she is a bad as is feared on the unitary executive, the vote against us will be 6 to 3. Obama's next two picks -- and it is not guaranteed that any will occur -- would have to come from the majority and be liberal. Appointing a true liberal now means that the court could be returned to liberal status with one future move instead of two.

    Also, you rate her persuasive and/or coalition building prowess very highly if you predict that the decisions are going to move from 5/4.

    (Also, I fail to see that you are in any position to complain about snark.)


    you wrote, "Now if we replace him with a liberal nominee..."

    I agreed that Obama not replacing him with a liberal. I don't see what more needs to be said.

    Most people tend to agree she's a centrist, maybe you disagree.

    Since she is centrist, Obama is making the court less liberal.


    Correction: at least her early writings are PRO-gays-serving-openly in the military; so unless she's changed, that is wrong info; can't remember where I found it; sorry.


    Tho't I was the only one acronym challenged, Stilli.


    No. I respectfully disagree, and although I simplified it for the purpose of writing here, I know of what I speak.

    Citizens United, and all other cases equating money with speech are ignoring a double standard. That double standard is that a corporate entity built of of individuals with a plethora of opinions, can use money collectively for purposes that often run counter to an individual employee's political interests.

    The other aspect to Citizens United, ignored by Greenwald, is that the Chamber of Commerce is a de facto "speech laundering" organization that provides a high level of anonymity--an anonymity that was supposed to be rendered transparent.

    Now, here is where I get a bit into the weeds. If Greenwald was supposedly the "constitution following progressive" that you judge him to be, why would he spend so much damn space defending an untenable position? The reason I call it an untenable position is because it can be argued (as Ruta touches on below) that the public financing of campaigns can adhere to the constitution while preserving representative government. There is nothing wrong with a progressive consistency if that consistency can also provide us with the best of available outcomes.


    If she's as persuasive and organized as she was in Citizen's United...


    Don't get that the question is a foul; he hasn't answered. Do you read a different implication in his screen name? I'm just not hearing this, jonnieo.


    thanks for that link!


    OOoooh, that was a *stinger,* jonnie! LOL! :)


    and with 6 to 3, your marking yourself right down in the nut category, and I can't feel bad for saying that because that is exactly what you are doing. You want to be careful with demonstrably absurd predictions.


    The following 5-page bio just published by the NYT relates the story of a classic life-long progressive liberal, raised by an Upper West Side progressive liberal family, and liberally political active until graduating from law school, and smart enough to know not to broadcast her personal political views once she got into lawyerin' for the gummint:

    http://www.nytimes.com/2010/05/10/us/politics/10kagan.html

    But maybe you are the type that would be unhappy with her mentor Thurgood Marshall as too conservative had Obama managed to resurrect him.

    P.S. The article suggests she learned something in her undergrad thesis that a few members here could benefit from learning as well, mho:

    She titled the thesis “To the Final Conflict: Socialism in New York City, 1900-1933,” and used the acknowledgments to thank her brother Marc, whose “involvement in radical causes,” she wrote, “led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”

    In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States — a loss that she attributed to fissures and feuding within the movement. “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote.


    As Greenwald notes, he thinks politics is too much awash with money. *IF* you can come up with an equitable solution that preserves first amendment rights as granted to corporations on an equal non-discriminatory basis, Greenwald would likely be quite happy. Elsewhere it's been posited that corporate rights are not quite he same as people's, and they can be limited as essentially a natural limitation from incorporating - I don't know if that's completely true, but I think this tried. Whether it was just the type of case - limiting a low-budget movie about Hillary does seem pretty lame. Does that say British Petroleum can spend $5 billion on campaign ads for the next presidential election? I don't know if the decision goes quite that far in reach. But in any case, if BP can, then the Actors Guild should be able to as well.


    I hereby 'rec' this comment. Thanks, AA.


    NO NO, I wrote "*more* liberal," etc. and you are digging yourself into a deeper hole as somebody who doesn't give a tinker's damn about the facts, quotes, or context, as long as you can make irresponsible, wild accusations against the President.


    look at what you wrote:

    Now if we replace him with a liberal nominee, every single decision, every last one, no exceptions, will go against us. Always. Just mentioning.

    may be you wish you wrote it differently.

    Now look at what JOnathon Turley wrote:

    As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.


    For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.

    Kagan’s writings (as little as there is) is highly problematic for liberals. Her writings on hate speech shows a willingness to compromise on free speech issues. This is a similiar view as expressed and criticized with Justice Sotomayor.


    I did oversimplify. I admit it. He offered a lot of nuance, but ultimately he came down in favor of the ruling. I find the ruling abhorrent and unconstitutional because it undermines free speech protections in the name of advancing them. The Chamber of Commerce loophole is big enough to drive billions of dollars through, and it codifies a doctrine of corporate personhood that only passes constitutional muster if you are a deranged blue-blooded jackboot.

    If "progressive" means overthrowing the Bill of Rights every time preserving the Constiutution would produce an outcome that progressives don't like, then I'm sending back my progressive decoder ring and resigning from the club!

    I would too, Ruta. I am not as big on the "rule of law" as others because it is often a term that obfuscates the expansion and abuse of elite power. I defer to Kafka as a salient critic in that regard. But I do believe that the application of justice should be equal. I also believe that the equation of money with speech because money purchases medium is as asinine interpretation of the law that is creating a "rule of law" that produces obscene outcomes that progressives should adhere to because that's just how it is.

    The equation of money with speech has distorted and perverted our framework of authority and the perception of power and orthodoxy. At one point do we note that this idea of money = speech has undermined the Bill of Rights by making these important exemptions to tyranny a joke? What is the point of a free press that expresses the opinions of advertisers? What is the point of a free assembly when the assembly is funded and thus derives its opinion from advertisers?

    At what point do we realize that our opinions and lifestyles are shaped by people other than ourselves, and the freedom we claim belongs to us intrinsically has been subverted because the availability of liberty is in proportion to one's capacity to purchase it?


    I believe there are ways to wash the aegean stables without adding more bird shit.

    Let's agree to disagree here in order to let the conversation about Kagan run its course. I should not have been so minimal in my description of Greenwald's opinion.

    However, I would love to have a blog arguing this concept because I think it would be great to have. Do you want to write it, or should I?


    Simplistic. This simply equates to every body gets to spend 0 dollars on advertising and the court has already ruled that limiting spending to x dollars for everybody is not allowable. It may meet an equal protection argument: it does not meet a free speech argument.


    And your predictions for her positions on unitary executive questions?


    Asking that Congress pass an unConstitutional law is not upholding Obama's oath of office to support the Constitution nor does it uphold the freedoms in our traditions.


    I checked in with him the other day for some opinion, and he has the Lady Gaga video cover the soldiers in Afganistaan made up; gotta love him...
    (He also did not care for Sotomayor's intellectual ablity, though. Tough standards, our Jonathan. ;-}


    A stinger, alright. *WAS THAT* the reason you use that screen name?


    It met a free speech argument until Buckley v. Valeo in 1976. Even then, there was a concept that contributions can and should be reasonably limited in pursuit of the best public interest.

    Citizens v. United changed all of that. Now, there is no discretion when it comes to public interest. If money = speech, then that speech, no matter the quantity and no matter the impact on public interest, is free and must be endured. That is a tyranny of interpretation that foresakes the common good for uncommon consistency.


    What the hell does that even mean?

    The President can ask for anything he or she wants... Congress legislates. Congress can ignore the President if they wish and never bring the issue to the floor.

    There is already a public safety exemption to reading a suspect their rights. It exists. The idea floated by Holder is to define that public safety exemption in terms of terrorist suspects. We don't know what this will be until Congress begins the legislative process.

    On the surface, I don't like it, but I think you are being overblown and tedious by throwing support and defend verbiage out here like it means anything other than a bit of chest-pounding.


    I am very saddened by this nomination. It in no way, shape of form honors the legacy of John Paul Stevens...a John Paul Stevens who found very little common ground with, even, Anthony Kennedy, who Kagan seems to be very similar to ideologically. I can't believe that this was the candidate closest to Stevens in terms of ideology that Obama could find.

    The Court drifts even further right...


    And people wonder why the political left is demoralized and unenthused to go to the polls this November? Behold reason #327...

    I am not feeling the love...at all.


    From John Byrne at Raw Story: Kagan goes even further than Bush and Obama on holding detainess *believed to be involved with or funding 'terrorism'* indefinitely. INDEFINITELY.

    http://rawstory.com/rs/2010/0510/kagan-supported-detaining-terror-suspects-indefinitely-trial/


    Yep, case in point wendy, case in point.

    Another former liberal who is now nothing more than a conservative in liberal's clothes...aka "neo-liberals". Clinton, Obama, Ben Nelson, Joe Lieberman, Rahm Emanuel, etc, etc, etc...


    Foggy memory again, but one of White House 'anonymous sources' said that's the point; Kagan's someone that the Lefties *won't like*; guess that means something, but dunno what exactly. Bipartisan choice? Lindsey Graham hearts her; Bill Kristol, too.
    I spent some time worrying he'd appoint either Kagan or Napolitano; still not convinced which of the two would have been worse...don't have to decide now. ;-)


    Twice a day, when the clock turns Greenwald.


    Precisely so.


    Yep, we are now in a post partisan utopia...or hell.

    Every day he seems to take more pride in doing things us 'lefties' don't like. I have seen that trait before but usually it was only confined to politicians who had a (R) following their name...I guess that trait is spreading.


    Sorry, based on her own unnecessary endorsements of the necon view of the executive I just don't buy this manufactured story line.


    Ya know there is a very fine line between neo-conservative and neo-liberal in ideology. LOL...I know, I know, not that I have to tell you.

    ;^)


    I don't disagree with you about Citizens United, Zipperupus. My comment was mainly about Greenwald's criticism of "outcome-based" evaluation of the law.

    And I totally agree that the equation of money and speech is lethal for democracy. I'm only saying that we have to break this equivalence for every "legal person," by eliminating political advertising all over the public domain.

    As Greenwald says, even without Citizens United...

    There's not much room for our corporatist political system to get more corporatist.

    But there's a lot that could be done to limit corporate influence, without infringing on the First or Fourteenth Amerndments, beginning with restoring the Fairness Doctrine and banning political advertising on TV.


    I am encouraged by much of what I have read today. I wasn't a very happy camper this morning, but the more I read about her, the less concerned I am. Thanks, AA.


    You should still be concerned stilli. She is a 'former liberal' who has embraced neo-liberalism. Don't judge her by what she has said in the distant past (her undergrad thesis), go by what she has been saying, and advocating, recently. She is on record saying the policies of George Bush are all constitutionally legitimate and aren't abuses of power by the executive branch.


    The Republicans had nearly 30 yeas of political dominance during which they could not finish off the Democrats and liberals. Obama seems to be trying to help them finish what they couldn't by herding the many sheeplike Democrats farther and farther right in defense of him and ultimately over the cliff of their own demise.


    Yep...then when our so-called allies turn on us all bets are off. And they, the Obama defenders, wonder why we are so upset with our president? When the left is viewed with more scorn than the right is the shark has been jumped...

    If we are part of the problem, as the centrists and Obama seem to think, then they won't mind if we stay home this November, will they? But then again we get to keep on hearing from then that we don't matter so they shouldn't care. They have all the answers, right? Not that Obama's approval rating is south of 50%...


    It also appears that Spam's comment above @ 11:37 is correct in suggesting:

    Go read a lot. An awful lot. Try hard to find something besides Glenn Greenwald to read, so you're not relying on one editorialist's disagreement to mindlessly throw back. And then come back and discuss the Unitary Executive. Because Obama isn't it, and Kagan doesn't favor it. You just haven't learned basic concepts well enough to know that.

    From the "Executive Power" section from

    9750 Words on Elena Kagan, More than you ever wanted to know

    by Tom Goldstein, editor of SCOTUS blog,
    Saturday, May 8th, 2010 1:00 am,

    My highlighting:

    Executive Power [by Tom Goldstein]

    Some have criticized Elena Kagan for supposedly favoring a strong view of executive power. They equate her views with support for the Bush Administration’s policies related to the “war on terror.” Generally speaking, these critics very significantly misunderstand what Kagan has written.

    Kagan’s only significant discussion of the issue of executive power comes in her article Presidential Administration, published in 2001 in the Harvard Law Review. The article has nothing to do with the questions of executive power that are implicated by the Bush policies – for example, power in times of war and in foreign affairs. It is instead concerned with the President’s power in the administrative context – i.e., the President’s ability to control executive branch and independent agencies. That kind of power is concerned with, for example, who controls the vast collection of federal agencies as they respond to the Gulf oil spill and the economic crisis.

    Nor does the article assert that the President has “power” over the other branches of government in the constitutional sense – i.e., a power that cannot be overridden. To the contrary, Kagan “accept[s] Congress’ broad power to insulate administrative activity from the President.” (2251). She instead makes the descriptive claim “that Congress has left more power in Presidential hands than generally is recognized.” (Id.)

    Kagan does believe that presidential control over the agencies is a good thing. As a policy matter, but not as a constitutional matter, she therefore shares some common ground with conservatives who believe in a strong, unitary executive. Conservatives want that presidential control because they believe that it is the best interpretation of the Constitution and because it increases the prospect that agencies can be blocked from running amok, generally by engaging in excessive regulation.

    But Kagan favors the idea of Congress allowing strong presidential control for a very different reason. Based on her then-recent experience in the Clinton Administration, she explains that a progressive President needs control over the agencies to press his agenda. “Where once presidential supervision had tended to favor politically conservative positions, it generally operated during the Clinton Presidency as a mechanism to achieve progressive goals. . . . Clinton showed that presidential supervision could jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.” (2249).

    There is no link between Kagan’s views on the value of Congress permitting strong Executive control of administrative agencies for purposes of achieving progressive goals and the claim that the Bush Administration had the constitutionally conferred power to engage in policies like the NSA wiretapping program and indefinite detention in the war on terror. They have literally nothing to do with each other.

    Critics equally misunderstand a 2006 article in the Yale Law Journal by Kagan’s deputy, Neal Katyal (who prevailed [with me as co-counsel] in the Hamdan case), when they assert that Katyal views Kagan as asserting a Bush-like vision of presidential power. Neal K. Katyal, Internal Separation of Powers, 115 Yale L. J. 2314 (2006). Katyal’s article does nothing of the sort. Katyal points to Kagan’s view that presidential control encourages “executive energy and dispatch.” (2317). Katyal believes that a strong Executive “fails to control power” when one party controls the Congress as well. (2332). But he flatly recognizes that her article is addressed to “domestic policy,” and he merely analogizes to how similar arguments could be made “in the realm of foreign affairs” (2343), which as noted Kagan was not doing. Kagan’s article, Katyal explains, “is about [Clinton’s] attempt to use the President’s authority to achieve domestic policy goals,” and Kagan “excludes or distinguishes foreign policy. As such, the above analysis is not a direct criticism of her article but rather of attempts to extend her concept to foreign affairs.” (Id.) I do think that the two articles suggest that Kagan and Katyal (both veterans of the Clinton Administration) differ to some extent on the question whether it is a good or bad thing for the President to exercise strong control and direction over agencies, but that disagreement again has nothing to do with the foreign-affairs-related issues raised by Kagan’s critics.

    Liberal commentators also point to a brief exchange between Lindsay Graham and Kagan at her confirmation hearings. As discussed above, Senator Lindsay Graham asserted that, under military law, a member of an enemy force can be detained without trial. When he explained that Attorney General Holder had agreed with that statement in his hearing and asked Kagan whether she agreed, she replied “I think that makes sense, and I think you’re correct that that is the law” (see hearing video at 1:37:35).

    It seems to me that liberals’ reliance on that passage is dramatically overblown. Kagan was asked whether the Attorney General, for whom she would work directly, was right in his understanding of existing law. The question had nothing to do with Kagan’s own views. And a single sentence in a confirmation hearing is far too slender a reed on which to base an understanding someone’s views on a question as complicated as the President’s power in war time.

    The point is easily illustrated by a similar exchange with Dawn Johnsen, whom liberals celebrate as an ideal nominee, but who withdrew from consideration to head the Office of Legal Counsel after having been blocked. Johnsen notably had been exceptionally critical of the Bush Administration’s policies in the war on terror. In written questions subsequent to her confirmation hearing, Senator Hatch asked Johnsen whether she agreed with Kagan’s answer that Kagan agreed with Holder. She responded: “Yes, I do agree with Dean Kagan’s statement that under traditional military law, enemy combatants may be detained for the duration of the conflict. That is what the Supreme Court said as well in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . As indicated above, I do not believe that release or criminal prosecution are the only possible dispositions for detainees.” No one believes that Johnsen was embracing the Bush Administration’s policies, and no one should think that was true of Kagan either.


    If Obama asked the Congress to pass a law restricting the freedom of speech of Protestants you would see exactly what I mean. Just because a President can run something past Congress does not make it constitutional. Just think about some of the things that Bush got passed.

    Not saying that there cannot be appropriate public safety exceptions to Miranda and I'd agree with you that it is better decided between Congress and the President than by the executive alone but the President needs to be careful to devise Constitutional measures to the best of his ability.

    One of the most basic points about a constitution is that it limits what the assorted branches and even a majority of the people are supposed to be able to do without first amending or replacing the constitution itself. Frequently, the limits imposed by the Constitution are honored in the breach. The internment of the Japanese in WWII is a prime example.


    Media Matters for America goes over same:

    Myth: Kagan's record shows that she will rubber-stamp war-on-terror policies

    (Kudos to them for finally starting to include some liberal blogophere disinfo. in their usual list of right wing disinfo.)


    He did bring Davis Plouffe back once he's written his book to gin up some internet excitement for the midterms; haven't seen much, so I don't know for sure what he's doing.


    David Plouffe.


    That's a great link. Thank you. I am going to dive in!


    Yup. Gracias.


    That you pegged her antigay at all is a super tribute to your objectivity and handle on facts.


    Gosh, I've been remiss by commenting only on comments. I must address this OP.

    Oleeb, your OP reads like a rant from one of those Idaho hill people who charges people with violating laws they invent and then holds trials in absentia in their weird grand juries. (And it's reining, not reigning. But I quibble.)

    The founders would have been quite fine with killing Tories they believed took up arms against them withour a criminal trial. If you think George Washington and the founding asymmetric warriors would be concerned about arresting Awlaki and giving him a criminal trial, you are as trenchant an analyst of history as you are of law.

    Good job on the Stalin comparison, though! Does that make Kagan Bukharin? Just wondering. Maybe that makes Saul Alinsky Lenin. He might not mind, right? Or if Obama is a Roman Emperor, can he be a really cool one like Trajan, or is he a dud, like Otho? I'll defer to your views. Rule of law! Rule of law!

    I swear to God, on the way home, little pieces of sky were bouncing off my car. I think this validates your piece, no? And when I logged onto Lexis, there are no longer any laws. Who knew? I'll have to ply a new trade, as a lawyer in a suddenly lawless country. Oh well! Serves me right for supporting Obama!


    That sure explains Lawrence v. Texas.


    YUP! :)


    Libertine, if you are *breathing*, you are not are not feeling the love. We know. You say it every single day. We got it. Heard it. Understand it.

    No need to repeat it another 100,000 times.


    Almost nothing is known as yet, in any detail, about Kagan's considered views on the important constitutional questions of the day. Honestly, I don't see how anyone can have an informed opinion on this nomination, pro or con.


    Well if you are breathing all you feel is the love...and we don't need to hear that another 100,000 times. So where do we go from here? You guys in the center are getting more isolated. The people who you are trying to play nice with loathe you and the people who want to see you succeed, but sincerely feel you're going about it all wrong, you're telling to fuck off.


    "Oleeb, your OP reads like a rant from one of those Idaho hill people who charges people with violating laws they invent and then holds trials in absentia in their weird grand juries."

    So does everything else oleeb has written since about March of 2009.


    Thanks for the very helpful links. But, unfortunately, you've wasted your time if you're hoping to convince those already convinced that Kagan is simply Bill Kristol in drag.

    See the discussion thread beginning with Libertine's comment below. They simply refuse to acknowledge any evidence that contradicts their blind certainty that Obama nominated Kagan simply to provide him greater cover in his abuse of presidential authority in conducting the war on terror (hate that phrase).

    I swear, you might as well be trying to get some reasonable basis for agreement from a pile of rocks. Or a group of Teabaggers.

    I hope she's asked to rule on a significant case involving these issues of executive authority claimed in the context of an ambiguous, open-ended conflict like the GWOT. If she sides with the Bushies, I'll admit my error in thinking the concerns expressed at this time are overblown. But I'll also be surprised.

    As surprised as I'll be if the "progressives" here admit their error if she instead rules against those claims of presidential prerogative.


    Definitely second this comment. While expressing some concerns on the part of progressives seem reasonable, we have yet another full-blown case of Obama Derangement breaking out among the "progressives" on this site.

    I mean, "cowards," "despots" and "neocon hacks?" Really?

    Meet Barack Obama. History's Greatest Monster.


    "We are now in a post partisan utopia... or hell" -- just as you so rightly suggest, Libertine.
    And, in response, I must confess that I now have "post partisan depression."


    You write it, let me know at decader at gmail.com


    Great - "Obama's putting the youngest juror on the Supreme Court for a lifetime appointment, but don't worry or judge - we know nothing about her!!! It might be okay!!!"

    I'll sleep snug tonight. How's that "seems like a nice guy, but we don't know anything about him" John Roberts appointment working out?


    Anna, how do we pick? There is no guarantee about what any justice will do. We are human beings and anyone can turn into a Scalia or even a Cheney, or also a Brennan. So we guess.

    What we have to pick is someone who can replace a powerhouse minority justice who was appointed by Republicans, and nobody can actually replace that man, who is a giant. Hopefully somebody who can do more than simply replace the fourth losing vote each time. There is no doubt that she is a strong, strong person, and that is needed. That's the strategy they're pursuing. If we get to replace one of the five in the conservative majority, it's a different ballgame, of course.

    I don't think Obama would have nominated her, "my friend" who he knows for 15 years or so if he didn't have a good idea what was going on here. But it may backfire, no question. That is always true.


    So sorry, "AJM" Sorry, sorry.


    Obama voted against Roberts. Kagan's been known to senior Democrats for decades now (she worked in the Clinton administration). Unless you truly believe that the Democrats are just as eager to establish feudal economic conditions and a police state in service of the oligarchy as the Republicans, you have to believe she'll be a decent pick, if not the best we could have hoped for.

    I honestly think Obama believes he's appointing the liberal Roberts. Someone with the intellectual heft, political savvy, and yes, potential for longevity on the bench to leave a lasting judicial legacy. But at a certain point, you have to trust that he's not going to appoint a Souter in reverse. I mean, there are no sure things in life; he could appoint Harold Koh and have him get hit by a bus on the way to his first session.


    AA, this is a deliberate falsification of what Greenwald and others have claimed and is, I suspect, part of the administration's concerted effort to attack anyone who dares to point out the nagging problems with Kagan.


    You are nothing but a hack apologist and blind follower of anything Obama says or does. You have no independt thoughts and are a tribalist. You are a shameless adminstration troll.


    hack


    You really are a symphony consisting of a single (off-key) note, aren't you?


    I happened to catch Greenwald on Rachel Maddow last night and he didn't seem to have much of anything to say at all except that she's a blank slate. Sound and fury signifying nothing, when he's called to support his screeds, it seems he can't remember what they were:

    http://maddowblog.msnbc.msn.com/_news/2010/05/11/4267333-greenwald-kagan-is-too-blank-a-slate

    Seems to me people like you and him are crazily overreacting based on a narrative you've developed about Obama being the continuation of the font of all evil that you must continue and feed with hyerbole, and you can't manage anymore to judge his actions and policies individually. You wrote this post before you knew much about her at all, and now you feel you have to continue to support what you said.


    Since you seem to like to create narratives from supposition without much basis in fact, i.e. "Obama Trades Rule Of Law For Easy Confirmation Of Kagan," let me offer an alternate story: "Obama, the ever so slightly left-of-center centrist, and past Constituional professor, decides to appoint someone he knows as a liberal to the Supreme Court in order to balance its current conservative slant, one who doesn't have the habit of wearing her liberal sentiments on her sleeve, so it will be hard to label her as such, and one who learned over her career to interact in a crafty way with legal minds of conservative persuasion." I admit my narrative could be just as off as yours, we'll see, but I'd be willing to bet that in a couple of years you'll be defending her.


    "Anthony Kennedy, who Kagan seems to be very similar to ideologically..."

    What is your basis for this statement, exactly?


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