There may be many legitimate reasons for progressives to feel skeptical about Elena Kagan as a Supreme Court justice. But it boggles the mind that anyone bright enough to finish college thinks that lack of prior judicial experience is one of those reasons.
I found lists of the most and least conservative (i.e., “liberal”) Supreme Court justices since 1937, according to some law prof. Here are the liberals, most liberal first.
- Marshall
- Douglas
- Murphy
- Rutledge
- Goldberg
- Brennan
- Black
- Warren
- Ginsburg
- Cardozo
Of these, three had no prior judicial experience — Douglas, Warren and Goldberg (see complete list). And of those, Warren’s record prior to his nomination would have sent today’s liberals — me included — to the barricades to fight his confirmation.
And the fact is that several justices have proved to be far more liberal after being seated on the court than their record suggested they would be (Earl Warren being a prime example). I’m not saying that Kagan will prove to be more liberal than expected. But if liberals are going to oppose her nomination, they need to come up with a better reason than her lack of judicial experience. (Conservatives, of course, don’t need a reason …)
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Maha,
I’m having some moments. Bp’s fuck up is unpresedented. And as a loyal Obama man. I’m jumping ship. Throw me a rope. This fuck up in the gulf, this sis som3thing that will not end and will not be ended anytime soon, does anybody have a fucking plan B. So I’m mad at Obama for what, not sure, I’m mad at the filth. 2 weeks of oil. No question as to the impact. I can smell it now through my keyboard. How do these things happen. I’m an engineer and I’ve dealt with failure, but I’ve never seen such simpletons. And such a willingness to accept failure. Once you execute plan B, Your supposed to have a backup, Plan C, _Plan D, Plan EE if need be.Your required a safety net to fall into. You dam near better Run if it don’t work.
How could we be so dumb. Take one look at that transmission, Your next republican.
Hey vote vote
Look, the righties can have any, and every hissy-fit they want. And they will. But for our folks on the sane side of the great divide, her lack of experience as a jurist should not be an issue.
It pains me to say this, but look, as much as I hated Alito and Roberts’s nominations on ideological grounds (and Lord, how I wish our Senator’s took hissy-fit classes from the guru’s on the right), you couldn’t question their bono fide’s. Not even if they’d never spent a day in a judges robes. They were both excellent, highly qualified lawyers. Corporate ones. (Why can’t we on the left make the term ‘corporate lawyers’ sound as bad as the right does ‘trial lawyers?’ I mean, they’re the one who protect the fat pockets of companies who do harm, while the other tries to get some economic justice out of any damage done. Why is it that those on the side of the angels are made to sound like ambulance-chasing greedheads, and the ones protecting the company like Mother Teresa? Another masterful propaganda job by the right).
If 3 out of the 10 listed by maha above never wore robes, why question her abilites to make that successful transition?
Look, to paraphrase what I wrote in a prior comment, Kagan’s not a bad choice by any measure, and certainly not a bad one because she’s not OUR choice.
I’m sure she knows the history of the SCOTUS and who she’s replacing. I think she’s kept quiet over the years for just this reason. At least that what I hope.
And as for her driving skills, brought up earlier, who cares how she drives as long as she uses the left turn signal much more often than the right.
“if liberals are going to oppose her nomination, they need to come up with a better reason than her lack of judicial experience”
and they have, Glenn Greenwald leading the way. Next.
Goldberg was not a great justice. Warren wasn’t really a great legal mind. Douglas’ eventual libertarian jurisprudence was somewhat unexpected, see his concurrence in the Japanese Internment cases as compared to someone like Murphy. So, even there, that isn’t the best case.
I linked to Glenn’s opinion yesterday, and I respect it. And as I said yesterday I would have been happier with a more unabashedly liberal nominee.
But also as I said yesterday, I’m reserving judgment on Kagan. I’m neither for nor against. Given the historic tendency of people who are sorta kinda moderately liberal in their pre-SCOTUS careers to become more solidly liberal after being seated, I’m not terribly worried that she’s going to turn out to be another Kennedy. If Thurgood Marshall is indeed her “legal hero,” there’s a possibility she will surprise Glenn and be a fire-breathing champion of limited executive power and civil liberty.
He was only on the Court for three years before he resigned to become ambassador to the UN, but I don’t see how you can say he wasn’t a “great justice.” His opinion in Griswold v. Connecticut helped pave the way for Roe v. Wade. Another Goldberg on the bench today would be a great advance for liberalism.
Whatever his “legal mind” was, the “Warren Court” was, arguably, the most liberal court the U.S. ever had. Warren led the way in Brown v. Board of Education, Miranda v. Arizona, and Gideon v. Wainwright, among other landmark cases that moved the causes of civil liberty and equal protection under the law forward in leaps and bounds. Another Warren on the bench today would be a great advance for liberalism.
But the larger point here is that Warren’s record as a justice was a great deal more liberal than his pre-SCOTUS record suggested it would be. As governor of California Warren was, for example, a major force behind the decision to inter Japanese Americans during World War II. If Kagan is a frightening choice, Warren would have been downright terrifying. Yet as a justice he probably did more to strengthen civil liberty than anyone else I can think of in the 20th century.
But that is the best case; that’s exactly what I’m talking about. Douglas indeed voted with the majority in the internment case, although he was less directly responsible for the internment than was Earl Warren. But as time went on he grew more and more liberal. He was reliably liberal on First Amendment and environmental cases. He wrote the lead opinion in Griswold v. Connecticut, in which he put forward the argument that there is a “right to privacy” implied in the first eight amendments. He had the second most liberal record of any justice since 1937 after Thurgood Marshall. Another Douglas on the bench today would be a great advance for liberalism.
My point here is that all these progressive bloggers and commenters who are so certain Kagan will betray liberal values need to chill. Anyone who thinks he or she already knows how Kagan will vote is a fool. We really won’t know how she will vote until she votes. Not even Glenn Greenwald can predict how she will vote, and he ought to be smart enough to know that. Certainly, there are concerns to be raised and discussed, and I am not going to defend her as being a great choice, either. I’m saying the knee-jerk certitude of some progressives that she’s a bad choice is grossly misplaced.
I’m with you Maha. I don’t think you can really divine what the nominee is going to do once seated. That kind of power often changes people. I would have preferred a more recognizably liberal judge but one that would thrill me would *never* get confirmed. As a practical matter, anyone Obama nominates is going to be lightyears better than we would be facing had McCranky somehow won in 08.
Maybe I’ve just reached an age where my idealism has been replaced by pragmatism. In any event. the judicial experience argument is weak and IMO somewhat silly. But coming from a lefty, it does get you on the TV, doesn’t it?
I’ve been actually sickened by my colleagues on the left as I read (elsewhere, not here) what they have to say about Kagan. About the worst is that she’s not being fair to us when she doesn’t admit to being a lesbian… “just look at her haircut”. I’m serious. This is really awful stuff.
By the way, my outlandish belief (from observation… for decades) is that judges on the right are much more likely to vote their political beliefs than on the left but that they are also more likely to move left over the years than their liberal colleagues are likely to move right. Liberals are more persuasive and more credible. Kagan is noted for her ability to persuade.
Yes, I think it would be a good thing to have a sense of whether Kagan is an economic populist or not — now that we’ve reached crunch-time when it comes to corporate control of our nation. It would be a good thing to have someone on the Court with a more even-handed approach to gerrybuilt cases like “Citizens United.”
Kudos to CundGulag for noting: “Kagan’s not a bad choice by any measure, and certainly not a bad one because she’s not OUR choice.”
An unmarried brilliant humorous and greatly admired person of Kagan’s calibre on the Court? How much luckier can we get? What a pity we have to suffer her short hair, absence of hubby, and no passport stamp from Greenwald.
Alackaday. Going out in the garden to eat worms, etc. etc.
Japanese internment, I remember it, was in part to protect them. We had a German, spoke German also, family down the street and after about a year into WWII they disappeared (for protection? to escape the angry stares of their neighbors? to escape the name-calling?) we didn’t know but were glad that they were gone.
Sounds extremely politically incorrect, whatever, these days but at the time propaganda was coming at us hot and heavy. Unlike now, we were being rationed, everyone had at least one family member fighting somewhere, black arm bands were a common sight, we were being defeated in the Pacific theater by the Japanese…does all that ‘excuse’ internment (or name-calling) maybe not, but it happened.
uncledad – Amy Goodman had an Obama ‘list’ last night on the telly that really threw me into funkville. Refuses to sign the Land Mine Ban Treaty, okeyed start-up of 29 more off-shore drill sites with the SAME environmental standards, no more in fact, than were required of BP, proposed ‘adjustments’ to Miranda when questioning suspected terrorists, across-the-board watering down of proposed new regulations in the financial sector, big up-tick in Afghanis getting killed by our military at border crossings…
Granted I don’t the Administrations facts at hand and therefore can only judge on the surface, and the ‘surface’ looks pretty ugly.
PW, I agree with every single thing you said.
Glass half-empty: sometimes we on the Left are our own worst enemy; I hope the Kagan nomination doesn’t turn out to be one of those times. Glass half-full: our refusal to march in lockstep still makes us smarter than the Right.
Politics is everything now – that’s not nice but it’s true. A SC appointment should not play in the 2010 or 2012 elections but it does. If Obama nominated a flaming liberal with a paper trail, the GOP would happily fillibuster and claim they are protecting the USA from socialism. Obama nominated a moderate with damn near NO paper trail – who might turn out to be a flaming liberal over the long haul.
How does that play? With the MSM coming up with a ‘moderate’ designation based on her style so far, the GOP will look totally obstructionist if they filibuster someone with her qualifications who deliberately recruited conservative law professors to balance out the Harvard faculty. True. If the GOP block Kagan in the Senate, they can be made to look VERY bad as we ramp up to November.
This was a shrewd pick politically – how Kagan will play out in the court is a wait-and-see proposition. A ‘guaranteed’ liberal would not have been confirmed and the pick would have haunted Obama in 2012 when the teabaggers try to paint Obama a socialist.
People are coming to grips with exactly what kind of president President Obama is shaping up to be. I think that technocratic, very corporate friendly, and not even remotely progressive are all reasonable descriptions. There is absolutely no reason to believe that Kagan will be any different, based upon her career track thus far. Obama chose her for a reason after all.
More progressive after she gets in? I wouldn’t hold my breath. Am I wrong, I certainly hope so.
obamarahma is a corporate shill, truly chimpy’s third term. It is not rational to speculate she might be more liberal blah blah blah blah…
She is a tool of goldman sachs and her stealth record actually means we can expect the same from her that we got from obamarahma – the big finger.
Not that obamabots will pay any attention – but dur chimpfurher II just tonight started laying the groundwork to sell the public out on his campaign promise about getting out of Iraq – you know, the “wrong war, wrong time” garbage he used to great advantage.
dur chimpfurher II just tonight started laying the groundwork to sell the public out on his campaign promise about getting out of Iraq
new boss, like old, works for same military industrial complex – expect endless wars and cuts to social security soon.
“…they need to come up with a better reason than her lack of judicial experience.”
Huh? You must know that’s an idiotic statement, maha. Repeat it to yourself three times. What better reason could there be?
Really? You’re supposed to be liberal, not brain dead. If Kagan was a Republican, you’d be falling over yourself joking about her lack of experience.
I’m sorry that someone dropped you on your head when you were a baby and left you with impaired reading comprehension. Otherwise you would have understood from the post above that many Supreme Court justices have had no prior judicial experience, and among those were some of the all-time great judges who made significant contributions to civil liberties.
Also please note that I am allergic to idiots, so you’re now in the twit filter.
Joe,
Uhm, no we wouldn’t. Harriet Miers was a slam dunk, not because she was GWB’s bff, but that she had no GREAT legal expertise, AND she had no judicial experience. The point was also made about how many SCOTUS justices DIDN’T HAVE EXPERIENCE! Would AG the AG have been a good fit because he HAD served, in your mind?
If you read what some people wrote above, like me, you might notice that, as much as I hated Alito and Roberts, even without judicial experience, they were worthy candidates for the SCOTUS. They are great legal minds, just not ones I agree with. What bothered me was that all of their experience pointed out that they were Corporatist’s, which they’ve since proven.
BTW – what’s up with showing up to the party week late and with no booze, gifts or party favorites? What’s the matter, can’t you comment in the archives, where, when you call people brain dead, they won’t be liable to know about it?
Next time, we’re not asking for an RSVP, but do try to come somewhere around the time of the party. Whether you were invited or not…
maha,
I think this Joe was related to Joe the Plumber. He was THAT thick!