Sunday, May 9, 2010

Obama Picks Kagan for SCOTUS - UPDATED

I am actually a bit surprised by this news.  Considering the fact the left hates her, I thought it virtually certain Obama would choose someone else.  Is she my dream candidate, no certainly not.  She is a liberal but she is an open-minded liberal who made it a point to hire conservative legal scholars while at Harvard.  If there is someone out there Obama might actually choose who the right would embrace with open arms, please point them out.  I suspect no such candidate exists.

At a minimum, it will be entertaining to see how many awful photos of Kagan they can find to post over at HuffPo.  Here is the latest:
Here are a few previously posted photos of Kagan:

There are plenty of pictures of Kagan smiling but HuffPo passes them over in favor of the worst they can find. Tells you something, doesn't it?  The comments are more telling though.  Take this for example:
Obama has officially lost my vote.


w00t Kagan can make Kennedy the new left.

and from Milex:
Well, we definitely don't need another conservative. They've already made decisions that are ridiculous. Adding another conservative, we may as well be back in the confederacy. It doesn't matter who Obama selects, he will be met with strong opposition. And it has nothing to do with the nominee - it's the fact that the nominee will be selected by Obama. No other reason. So I guess we will have to live through another repug battle. I'm so sick and tired of the rethugs doing nothing but complaining, and inciting. That's all they're good for. For those of you that are republicans, defending the behaviour of your counterparts must be extremely difficult these days. I would like to hear - just once - an ACTUAL plan that the repugs have. Just one. I think the repugs should be the most quiet in this process, because they have contributed absolutely NOTHING to this administration - except vulgarity and hate.
 Speaking of being tired of the complaining and inciting from the other side. . . Do they listen to themselves?  Ever?  This is precisely the point when you see conservatives grateful Kagan is the one nominated.  How rare is it to find a liberal who wants to understand the conservative's opinion?

UPDATE:  Lawrence Lessig tries to make the case for Kagan as a progressive and ideal choice for the court over Diane Wood.  Lessig sees Kagan as capable of building majorities through reasoned argument and one who can flip her opponents to her point of view.   Lessig suggests Kagan is the type of person who could have used material presented to energize an argument in favor of his position in Eldred v Ashcroft.  I could write at length on this since I believe Eldred v Ashcroft was not a great outcome.  It gave a ridiculous extension to the life of a copyright beyond what I believe the founders intended.  Lessig lost this case, however, because he failed to make the proper argument.  He later admitted to his role in failing to convince the conservative justices of his position.  This is not, in my opinion, an issue that separates conservatives from progressives.

The part that troubles me in Lessig's article is the assurance she has the proper progressive views but hasn't been in a position to express them freely.    In the same breath Lessig notes Judge Posner's free expression of his views prevented his appointment to the Court, he applauds Obama's bravery in appointing Cass Sunstein to OMB.  Equating Kagan with Posner is reassuring while the mention of Sunstein makes me hope the Republicans oppose her with all their might.

Michelle Malkin  has more to support her concern over Kagan's nomination including her ties to Goldman Sachs and this troubling item:

It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House.
 It didn't take long before I found a nominee who would be acceptable to the right and stood a reasonable chance of being nominated by Obama:
Moreover, in his selection of finalists, 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.

Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president. Senator Orrin G. Hatch of Utah, a Republican member of the Judiciary Committee, privately made clear to the president that he considered Judge Garland a good choice, according to people briefed on their conversations.

But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.
 Obviously it would have been preferable for Obama to have used his rainy day pick leaving him to pick someone more conservative if he gets to make another nomination before 2012.  In the ideal, I hope we are not in a position to suffer anymore of Obama's picks for the Court.  We need to win in November and then again in 2012 for that to happen.

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