If I were the conspiratorial type, I’d think it was planned. What I know for sure is that so far, the loudest and angriest opposition to Supreme Court nominee Elena Kagan is coming from the left.
And what I’m guessing is that nothing could make Barack Obama happier.
I mean, it’s hard for conservatives to call Kagan an out-of-the-mainstream lefty when they keep hearing the so-called out-of-the-mainstream lefties saying that they’re worried Kagan is not left enough.
Go to the liberal blogosphere — Google will take you there — and try on these: Kagan is a blank slate. She’s a cipher. She’s a principle-free careerist. She’s Obama’s Harriet Miers.
The last time we heard anything like this, it was about George Bush’s Harriet Miers. That’s around the time Bush was busily backing down, reeling from charges by the intellectual right (and also the left) that he had picked an unqualified crony.
For Bush, dropping Miers was a humiliating defeat. For the rest of the country, it meant that Sam Alito, a strongly conservative judge — but one with credentials — would make his way to the Supreme Court.
It was a hard lesson. It’s a lesson, however, that has nothing to do with Obama or Kagan.
You see, Elena Kagan is not Harriet Miers. She’s a public intellectual who brings a resume that includes her present job as solicitor general and her old job as dean of Harvard Law School. She was never a judge, but neither were William Rehnquist, Felix Frankfurter, Louis Brandeis or Earl Warren, to drop a few names.
Kagan is routinely called “brilliant” by virtually everyone who knows her, from left and right. My daughter the law professor, who was a student of Kagan’s, calls her “brilliant” and also a great professor.
She’s sure Kagan would make an outstanding — and also liberal — justice. And if she’s left enough for my liberal daughter, why all the angst?
Well, there’s concern she’s not liberal enough, that she’s too willing to compromise, that she has a very thin paper trail, that many conservatives seem to like her, that she’s best known for having hired conservative professors at Harvard, that as solicitor general she defended some of Obama’s Bushlike detention rules for suspected terrorists.
But that doesn’t get to the essence of the story, which is Obama continuing in the Bill Clinton tradition of picking only-so-liberal liberals for the court. Whatever kind of justice Kagan might be, she almost certainly wouldn’t be what many on the left have been longing for: a counterpoint to Antonin Scalia. They want a liberal giant in the mold of Thurgood Marshall or William Brennan.
This would seem to be the time. There’s a liberal president. There are 59 senators who caucus with the Democrats. And yet, you see liberal Sen. Tom Harkin longingly lamenting to Politico: “Why do the conservatives always get the conservatives, but we don’t get to get the liberals? What the hell is all that about?”
We know what it’s about. It’s about Obama. He picked Kagan to replace liberal John Paul Stevens — on a court split 5-4, conservative to liberal — precisely because he doesn’t want her nomination to turn into an ugly fight on his watch. All post-Robert Bork Supreme Court nominations are brutal, but some, you may recall, are more brutal than others.
The drama for Kagan will probably come when she’s asked to defend her stance on military recruiting at Harvard Law over the issue of don’t ask, don’t tell. In fighting this battle, she called the discrimination against gays a “moral injustice” because, well, it is. We’ll see if that becomes her “wise Latina” moment.
It’s no secret, to Obama or anyone else, that a liberal “activist judge” doesn’t poll well, even though the activism of late has come from the right. Kagan, of course, hasn’t been a judge at all. In 1999, Clinton nominated her to the federal bench, but it never came to a vote.
She’s lucky. If Kagan had been confirmed back then, she probably wouldn’t be nominated now. There’s at least a little irony here. Kagan once wrote a law-review article saying that the nominating hearings have become a “charade” because nominees tend to dodge all substantive questions.
She’ll dodge at least some of them herself, but, in the end, I doubt it will matter. Liberal legal heavyweights have already lined up behind her. So will more than enough senators. And if Obama loses people such as Salon legal blogger Glenn Greenwald, he can live with that. Greenwald wrote that progressives are being asked to trust Obama on Kagan’s nomination and that, to his regret, they almost certainly will.
My daughter the law professor — who tells me she got an A- in Kagan’s class — doesn’t see the gamble: “We’re not only left taking Obama’s word but, as far as I know, the word of every progressive she’s ever worked with.”
Mike Littwin writes Sundays, Wednesdays and Fridays. Reach him at 303-954-5428 or mlittwin@denverpost.com.
