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OpEdNews Op Eds    H3'ed 5/11/10

Obama's Pick of Kagan Recognizes the Difference Between 4 and 5

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Message Lawrence Lessig
Originally published in the Huffington Post.

Liberals are angry that the president has let them down -- again. They believe they are entitled to a 21st Century Brennan, or Warren, or Justice Thurgood Marshall. They believe their work electing this man of "hope" justifies a new justice who would give the progressives hope. And they've been whipped up into believing that his nominee to the Supreme Court, Elena Kagan, is not that 21st Century liberal icon.

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I find myself torn by this debate. I have not hidden my own disappointment about the limits in this presidency. Obama promised to "change the way Washington works," by which he meant (as he explained again and again), change the power of special interests to block or divert reform. Yet the last year has shown nothing except reform blocked or diverted by special interests, and the president has yet to even acknowledge that this is a problem that he intends to solve. He has executed the presidency Hillary Clinton promised -- maybe better, maybe worse, but no doubt different from the change he said we could believe in.

But neither do I share the fear of progressives about the judgment or values of Elena Kagan. I've known her longer and better than those who question her. I think the suggestion that she's a Bush-Cheney monster is just disqualifying hyperbole.

Yet of course, my attestations are not evidence, and as I've said before, I don't believe they should suffice to eliminate anyone's questions. But I do think these questions are obscuring a more fundamental point about this nomination which I do believe this president was absolutely right to recognize.

Barack Obama is appointing the 4th justice to the non-right-wing wing of the Supreme Court, not the 5th. If the appointment is successful, it will produce decisions with at least 5 votes that are closer to Obama's view of the Constitution than to Bush's.

So what kind of 4th Justice is likely to produce that 5th vote?

To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left. A bold, if sometimes bullying, extremist that marks off clearly the difference between the Left and the Right. Someone we could rally around. A new hero for an ideology too often too afraid to assert itself.

But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes. No doubt it would produce brilliant dissents. No doubt it would give the Keith Olbermann's of the world great copy. But it would fail to achieve the single thing we ought to be focusing on: How to build "coalitions," as Massachusetts Chief Justice Margaret Marshall put it to NPR yesterday, of five. Not compromises, not triangulations, but opinions that work hard to cobble from this diverse court a rule of principle that our side could be proud of.

The kind of justice who could do this well is not the justice who goes in with guns blazing. The lesson of Scalia's tenure is one of alienating his most likely friends, not forging strong alliances. Souter, Kennedy, and O'Connor all came to avoid following Scalia's lead by default. He set the extreme. They were not interested in extremes.

Instead, the kind of justice who could do this well is one who was practiced in "listening, before disagreeing," as the President put it yesterday. One who could disarm, through trust and respect, so as to get the other side to at least listen.

Whatever uncertainty there is in Kagan's past, there is no uncertainty about this quality in her. There is no doubt that she can do this well. That doesn't mean she's going to flip the other side on each case. It just means that she has the chance. And when one imagines the career that this 50 year old justice could have, it means she has the chance to profoundly change the direction of the actual decisions of this Court -- through the hard work of persuasion, not the self-righteous work of outraged dissents.

Thus the decision the president had to make was not just whether a fight for a clearly liberal justice could be won. It was also whether such a fight, even if won, would produce something more than romantic dissents. And as he rightly recognized, even if he could win the battle to confirm someone at the extreme, that would simply mean losing the war to win opinions on this Court.

That's what appointing the 4th Justice means. If the president get's a chance to appoint the 5th, then a different strategy makes sense. Let the 5th be the Scalia of the Left -- Pam Karlan, or you pick your liberal hero. But right now, what we need is someone who can help move a divided Court, recognizing that we still stand in the minority, and our profound desire to feel good is no excuse for giving up a real chance for justice.

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Professor of Law, Harvard Law School, Co-founder of Change Congress
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