By Dan Kennedy • The press, politics, technology, culture and other passions

Kagan, Obama and the left

In my latest for the Guardian, I take a look at Solicitor General Elena Kagan’s record — and conclude that President Obama’s decision to name her to the Supreme Court may prove to be one sellout too many for his progressive base.

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32 Comments

  1. Michael Fortier

    The sad thing for progressives is that even if they’re willing to sacrifice an election to the Republicans by staying home or voting non-Democrat, there is a good chance their anger still won’t be heard, but that instead President Obama and the Democrats will take any Republican victories as proof that they need to move further to the right.

  2. Steve Stein

    Obama is especially disappointing to liberals because he was seen as to the left of the Clinton legacy, and Hillary in particular. He’s not governing that way though. All of his successes are triangulated in a futile attempt to get consensus. But it takes two to consense and he ain’t got no partner. This misplaced urge to compromise is fueling the “enthusiasm gap” – he’s not doing much to energize his base.

    Still reading and thinking about Kagan, but I also ran across this from Nate Silver – an entertaining article adapting a sabermetric approach to analyzing Kagan’s impact compared to a more liberal, but older, alternative (Judge Diane Wood).

    • Dan Kennedy

      @Steve: You are correct about the way the race between Obama and Clinton eventually got framed, but I’m not sure why. Obama put forth a health-care plan that was to the right of hers and regularly rattled the sabre on Afghanistan.

      And remember the “Obamacans”?

  3. Steve Stein

    I have no problem with rattling the sabre on Afghanistan. As I recall, there was very little distance between Clinton and Obama on this.

    I don’t remember the differences between the Democrats on health care. I do know Obama flat out refused to pursue any sort of public option on health care, even though he campaigned on it, at least in the primary.

    And no, I didn’t remember the Obamacans. I had to look them up. I think maybe they were just ashamed of being Republicans after their record running things in the decade. Maybe guys like Arlen Specter, who jumped the fence anyway. Who knows? The way the Tea Party is purging insufficiently conservative candidates from the GOP, there might be an Obamacan resurgence.

    • Dan Kennedy

      @Steve: Clinton made a very big deal out of the fact that her health-care plan provided for universal coverage and Obama’s didn’t. Paul Krugman favored Clinton over Obama because she took more liberal stands on economic issues, including health care.

      I point this out because it seems like there are a lot of disappointed Obama supporters out there who apparently thought he was a stealth candidate for left-wing causes. Hmmm … I wonder what made them think that?

  4. Glen Bergendahl

    Dan,

    While I feel you neglected to cite any examples of viciousness or stupidity from the “Right Wing Attack Machine,” can we agree Maggie Gallagher is an inconsequential blogger as opposed to a United States Senator?

    While it’s true Ted Kennedy was an intellectual light weight, he should have been above issuing his vitriolic attack Judge Bork, which has never come close to being matched by a prominent politician on the Right.

    …someone who would usher in an America in which women
    would be forced into back-alley abortions, blacks would
    sit at segregated lunch counters, rogue police could
    break down citizens’ doors in midnight raids…

    • Dan Kennedy

      @Glen: Pretty good summation of Bork’s judicial philosophy. Reagan’s choice of Bork was an assertion that you can pick anyone you like for the Supreme Court even if the other party controls the Senate. He learned otherwise.

  5. Mary DeChillo

    I think that in an election year, Obama needs to preserve
    as many seats as he can, thus the choice of Kagan. She can cover the center. In the next year or two, before 2012, there will be another opening (Ginsberg who seems to have sent a signal about a possible sooner-rather-than later departure with recent remarks she made about the state of the court). That seat should be a “liberal seat” and the liberal wing should hold Obama’s feet to the fire at that point.

    In the toxic politcal culture caused by the Tea Party and the National Republican Party it is nearly impossible for Obama to “go left” at this point. Liberals should be supporting him instead of insisting on liberal purity.
    “All or nothing” thinking on the left is not that different than “all or nothing” thinking on the right. We liberals/Democrats/progressives like to think it is but it’s not.

  6. Neil Sagan

    Very good article Dan.

    I was struck by the comment below, which if true, is of GREAT concern to me as it argues for a two class system, one in which the powerful are not accountable but the middle class is. I don’t know anyone who could argue that position is liberal or progressive but now all too frequently, it can be argued that that position is Democrat (Capital D).

    In Pottawatomie vs. McGhee, Kagan argued that prosecutors who fabricate evidence to put innocent men in prison should not face any penalties for their actions.

    Let me reiterate that: Elena Kagan believes prosecutors who lie in court to convict the innocent should not be penalized for it. Elena Kagan thinks perjury is only a crime when ordinary citizens do it — perjury from officers of the court is acceptable. That’s all I need to know about that vile creature. And Obama actually uses words like “Integrity” to describe her! Voting for him was the stupidest thing I did in all of 2008, and possibly the stupidest thing I did all decade. link

  7. BP Myers

    @Steve Stein says: I don’t remember the differences between the Democrats on health care.

    I remember Obama opposed a mandate, questioning its constitutionality.

    He would not have had my vote (the first Democrat vote I ever cast) otherwise.

    Joke’s on me.

  8. BP Myers

    @Glen Bergendahl says: …someone who would usher in an America in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids…

    How is any of that untrue? Bork’s strict constructionism would have allowed for all that.

    I know it’s hard to hear.

  9. Steve Stein

    @Neil – Every day, lawyers argue positions on behalf of their clients that they personally might find repugnant. Lawyers defend murderers and rapists, and argue for light sentences if their clients are convicted. Do we then say that they are in favor of rape and murder?

    • Dan Kennedy

      @Steve: Read Silverglate’s piece in the Phoenix. He goes through a careful discussion showing that, historically, solicitors general have demonstrated quite a bit of independence. I probably should have adjusted what I wrote for the Guardian and in my blog post, but I ran across Harvey’s analysis very late. Granted, many legal observers are saying Kagan was in fact obligated to defend the government, but it ain’t necessarily true.

  10. Steve Stein

    I know Kagan has “walked back” her ’95 comments about how nominees should be open about their positions on issues likely to come before the courts, but I hope she is asked about this and makes a substantive answer.

  11. L.K. Collins

    It is one thing for a prosecutor to withhold exculpatory evidence, that is unprofessional and disgusting behavior for an officer of the court.

    But for an officer of the court to fabricate evidence to assure the conviction of an individual is an absolute corruption of our legal system.

    For Solicitor General Kagan to support the latter is something that I, for one, would believe to be a disqualifier , an ABSOLUTE DISQUALIFIER, for any candidate for judicial position.

    For her as Solicitor General to have argued that position suggests that her Justice Department superiors are also have legal ethic issues.

    I would go as far as to say it should be a matter for the Bar Association to consider as a matter of professional misconduct.

  12. Donna Morris

    @L.K. Collins: If the facts are as you present in your comment, then I agree with you. Any lawyer who would support and/or defend the fabrication of evidence is unethical and corrupt. I see no grey area in it, nor should it be excused on the basis that “she was just doing her job.” The latter sounds uncomfortably close to “just following orders”.

    • Dan Kennedy

      @Donna: The Supreme Court has ruled that an appeals process can come to an end, including in capital cases, even if new evidence emerges, as long as all the rules were followed. It is sickening, but it is not cause for disbarment.

    • Dan Kennedy

      @Neil, @Donna and @L.K.: I’ve tracked down Kagan’s amicus brief (pdf) arguing that prosecutors should not be subjected to civil suits arising from their misconduct. Once you start reading it, it’s not as bad as it sounds. Essentially she argues that there are other, well-established routes for punishing misconduct, and that opening them up to civil suits would set a dangerous precedent. I don’t agree, but again, she’s not condoning misconduct. Here’s a taste of her argument, in Pottawattamie County v. McGhee:

      This Court has interpreted Section 1983 to provide absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process.” The Court has done so because that immunity comports with the common law tradition and because the threat of liability could alter prosecutorial decisions and divert prosecutors’ time and energy into defending civil suits instead of vindicating the criminal laws.

      If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm.

  13. Donna Morris

    @Dan: Thanks. I appreciate the clarification.

  14. BP Myers

    @Dan Kennedy says: It is sickening, but it is not cause for disbarment.

    Disbarment, no.

    Revolution, yes.

  15. Neil Sagan

    Thanks Dan. I’m ok with defendants not being able to sue prosecutors for manufacturing false evidence as long as there are criminal charges that apply to prosecutors for doing so.

    What is the level of accountability that a prosecutor faces for manufacturing wrongful evidence or testimony? Disbarment?

    That hardly seems proportional for the defendant who may be required to lose their liberty (serve a sentence) based on false evidence or testimony.

  16. Neil Sagan

    I’m sick of people who have and exercise the awesome power of government being unaccountable for egregious malfeasance in using that authority. (Reads George Bush and Dick Cheney and now Obama and even Mike Rush.)

  17. I mostly agree Dan. The only issue I have is your use of the word “pragmatic.”

    I know what you mean — an effort at finding some Republican support and not appearing too liberal.

    But I think it would indeed be practical to put a young, unambiguous liberal like Diane Wood on the court, given that is what voters wanted when the elected Obama (Bush era abuses of power were a major reason for the Blue Waves of 2006 and 08), and that the court is dangerously close to having a really frightening makeup. If Obama loses in 2010, and a liberal bloc judge must leave for health reasons, say, or death, we could have five militant, young conservative originalists on the court.

    I suppose that would be true even if a better (more progressive) nominee was chosen, but I just think this court is losing a lot with Stevens going — he was the most ardent and brilliant supporter of civil liberties on the court — and to replace him with Kagan, is beyond maddening.

    Point is: I wish “pragmatic” did not always mean something that will please moderate Dems and Republicans. Because sometimes moderate Dems and republicans support some very radical abuses of power — as they have so often in votes in Congress since the War on Terror began.

    • Dan Kennedy

      @Michael: To which I might add, if Obama is trying to be pragmatic (we can’t rule out the possibility that Kagan is truly his heart’s desire), he is going to end up with a choice whom the right attacks for hating our troops (because of the recruitment ban), and because, well, you know. Such pragmatism isn’t just unsatisfying; it also doesn’t accomplish its goal.

      I disagree with you on the public option. The math just wasn’t there in the Senate — not even with a 51-vote strategy. The Senate gives smaller, more conservative states disproportionate power. Recognizing that isn’t cynical. It’s just reality.

      I really like your description of Diane Wood as “young.” Gives me hope.

  18. I should add, I don’t mean my last post as critism of your piece. I do recognize that pragmatic, in terms of Washington D.C. politics, is defined that way and as a matter of “pragmatism” not every piece can quibble with the meaning of politically charged words.

    But I do sometimes like to step back and question the use of words like centrist moderate or pragmatic are always applicable (because sometimes they imply that those who are to the left of said position are “impractical” which is not always the case).

    This happened a lot with the public option. I had to ask: how does killing something with 72 percent support in the polls, that will save billion according to CBO make one practical?

  19. Donna Morris

    @Dan: Thank you for providing a link to Kagan’s amicus brief. The following excerpt appears in the SUMMARY OF ARGUMENT, I. second paragraph, Pages 4 and 5:

    “If the allegations here are true, petitioners engaged
    in prosecutorial misconduct of an execrable sort, involving
    a complete breach of the public trust. But absolute
    immunity reflects a policy judgment that such conduct
    is properly addressed not through civil liability, but
    through a host of other deterrents and punishments,
    including judicial oversight of criminal trials, and criminal and
    professional disciplinary proceedings against
    prosecutors. Imbler, 424 U.S. at 429. The Court has
    long held that, given these alternative tools, allowing
    criminal defendants to bring civil suits against prosecutors
    will produce few additional benefits and could cause
    serious harm.”

    It would be reassuring to know that these prosescutors, if guilty, did, indeed, face serious consequences, and that the justice system feels an equally compelling responsibility to avenge wrongdoing done in the pursuit of justice and in the people’s name. But I suspect that allowing prosecutorial misconduct to become public knowledge would be viewed as undermining the system and a contribution to public mistrust. Catch-22.

  20. BP Myers

    @Dan said: “. . . he is going to end up with a choice whom the right attacks for hating our troops . . . and because, well, you know.”

    Rumor monger.

  21. L.K. Collins

    I understand what you are saying, Dan, and to a great degree might agree…. if…

    …If it weren’t for the ring-knocker nature of the Bar and Judicial review processes by which sanctions are applied.

    Do you TRULY believe that closed Court disciplinary hearings are going to produce fair and reasonable judgments on the misconduct of lawyers/prosecutors?

    Do you TRULY believe that civil trial would not provide a fair and reasonable verdict?

    I would much prefer the civil litigation route, and would view any legal professional preferring the closed, thumb-on-the-scale process that the system currently favors as being unprofessional and unacceptable.

    Unacceptable, too, would be any candidate for the Supreme Court that would endorse such a biased system of dispute resolution.

    As much as you decry intrusions into the freedom of speech, I decry intrusions into fair and equitable due process.

    We know that organizations have significant difficulties policing themselves. Why should be see the Bar Association and Judicial Review Boards as anything less than stacked in favor of the lawyer if they are made up of nothing but attorneys and judges who have a vested interest in protecting their professional (and occasionally personal) options and interests?

    • Dan Kennedy

      @L.K.: Uh, I agree with you. All I was saying was that Kagan’s stance wasn’t as unconscionable as it first appeared. She’s just wrong, that’s all.

  22. L.K. Collins

    Yes, she’s wrong, Dan; we agree.

    But being wrong on that essential a point, unbiased due process, to me disqualifies her as a candidate for the Supreme Court.

    At what point to you draw the line on “acceptable bias” when it comes to judging legal or prosecutorial misconduct?

    Where are the checks? Where are the balances?

    A Supreme Court justice who approves of thumb-on-the-scace justice is not something that our society should find acceptable.

    • Dan Kennedy

      @L.K.: Let’s not lose sight of the fact that she was arguing in favor of upholding the long-established doctrine of sovereign immunity. The problem isn’t that she represents a novel threat to our liberties. The problem is that she stands for business as usual.

  23. L.K. Collins

    Good point, Dan.

    She stands for a continuing threat to due process.

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