The instant that Supreme Court nominee Elena Kagan's name shot to the top of President Obama's short list of Supreme Court picks in April, progressives and many liberals grumbled "betrayal." Since then the grumbles have decibeled up to screams that Obama took the cheap and easy way out with Kagan to avoid a prolonged, nasty, and in the trenches war with the GOP over his court nominee. The stock rap against Kagan is that she's a tight lipped, beltway, centrist, consensus builder, and putting her on a court with four (and on many days five) of the most bare knuckle, nakedly ultra-conservative, ideological driven justices to sit on the high bench in decades is a colossal prescription for disaster. Put even more bluntly, the horror is that Kagan will propel the court even further to the right.
The evidence of this is scant. It boils down to a few stray comments, a handful of published articles, her required defense as Solicitor General of some Bush era terrorism practices, and her on the surface appearance dismal record of hiring black and Latino professors during her six year stint as Harvard Law School dean. Even if inclined to read into and think the worst about her writings and actions, much less should be made of and read into them than should be made. Kagan is eminently confirmable and confirmable at a point when the Obama administration needs every ounce of political capital it can muster to push through any semblance of meaningful financial reform, comprehensive immigration reform, to revive the cap and trade bill, and in the looming battle over climate control. Progressives hoisted up Diane Wood as the judge with the right progressive political stuff based on her rulings, opinions and writings on abortion, religious and racial discrimination, and unfettered government power.
Wood, though, would have ignited a ferocious, divisive, and nasty fight. The entire Republican attack machine, shrill rightwing talk radio hosts, and bloggers, and tea party activists would have launched a holy crusade against her and by extension Obama. It would have been the Clarence Thomas confirmation brawl and George Bush Senior redux. The Obama administration would have been hopelessly bogged down parrying, counterattacking, and defending Wood as Bush was with Thomas. It would drained him of a massive expenditure of time, staff, resources and the very political capital that he can ill afford to expend. This would have given the GOP and tea party activists a monumental boost at the worst possible time in July when the confirmation hearings likely will be held. They would have sailed into the fall election with a full head of steam. The Democrat's could well have kissed their precarious hold on the House good bye.
The second half of Obama's term would have been one continuous battle with an even more warlike house controlled by the GOP. The unbridled warfare would have spilled over into the Senate. That would virtually assure that Obama's agenda would land on the shelf. Even if Wood's or another supposedly more authentic progressive judge's nomination squeaked through, it would have insured that the intransigent four--Thomas, Scalia, Roberts and Alito, would be even more intransigent in reflexively fighting her or him on any and every case that hit the bench that even remotely touched on civil liberties and civil rights issues. The even greater danger is that they would have pushed swing vote Kennedy permanently to their side.
The scantiness of Kagan's writings, opinions and non-existent experience (in this case judicial), and reputation as a consensus builder are not in themselves cause for terror. These were the very same qualities that millions found so appealing in the man who nominated her to the high court. The great fear is that Kagan will be bullied, badgered, and hectored by Thomas, Alito, Scalia and Roberts on the bench and to make nice with them will tilt or even acquiesce in crucial cases involving abortion, the death penalty, prisoner rights, corporate abuses, tort reform, government power and terrorism. That's a huge stretch. If anything, her supposed consensus building prowess could be spun the opposite way, and that's that she would stake out a position and fight hard to move Kennedy to her position. Countless Supreme Court justices from Hugo Black and Earl Warren to David Souter (and even the man she's replacing John Paul Stevens) were before they ascended to the court were knocked as too conservative, reactionary, and would pose a grave threat to civil liberties and civil rights issues once on the court. In nearly every case, this proved to be a false fear.
Kagan will likely prove to be the same. Progressives can huff and puff and dream starry eyed over whether Obama should have appointed a take no prisoners progressive to the bench. But he didn't. He appointed Kagan, and under the circumstances she was the best that he could get. In time she may well be the best that he should have gotten; even by the standards of progressives.
Earl Ofari Hutchinson is an author and political analyst. His new book is How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press).