Kaganology 103

Via the handy Maddowblog, Lawrence Lessig, Harvard Law Professor and professional colleague of Elena Kagan, takes to HuffPo to make the case for her confirmation.

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. 

The Double G, Glenn Greenwald, weighs in on his Salon blog as the prosecution against.

The White House has created a "war room" to attack Kagan critics. As Politico noted yesterday, the Kagan announcement -- understandably and revealingly so -- prompted "a stronger opposition from the left than the right." Think about that. Miguel Estrada, whom Democrats blocked from an appellate court position on the ground that he was a right-wing radical, endorsed Kagan for the Court today. A separate article details how numerous progressive legal scholars (who have nothing to do with me) have raised very serious concerns about Kagan's glaring lack of a record and what appears to be her support for at least some core right-wing views of executive power (including ones the Obama White House has adopted).

The White House, for obvious reasons, wants to discredit those raising such concerns. Now that Kagan is Obama's choice, she's the Democratic cause. The entire Democratic Party machinery -- the ossified DC progressive establishment, the Obama army, her friends from Harvard -- will be devoted to aggressively defending her and attacking her critics. This whole debate over Kagan has already broken down along clear tribal lines, and any progressive opposing or even questioning Kagan will be seen as a Traitor to the Cause. And Kagan, having spent the last two decades in academia and as a Democratic official in Washington, has a lot of influential friends. As Marc Ambinder put it: "Kagan is part of the club." She certainly is.

That's all well and good. Aggressively attacking critics is a normal and inevitable part of the process. But if the Democratic Party wants to put someone on the Supreme Court for the next 30 to 40 years about whom so little is known -- even ultimate Court sycophant Tom Goldstein said of Kagan: "The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade" -- then others have not just the right, but the duty, to raise concerns and demand more information. Trying to discredit those who do that is how party appartchiks function, and that's fine. But making things up and spouting clear falsehoods definitely isn't.

Both gentlemen have a point, and I encourage you to read both articles.  Kagan is not a blank slate, there are concerns about her jurisprudence or lack thereof, but at the same time she's not a sellout to the Alito-Roberts-Scalia-Thomas wing, either.  It's good to see the debate however, it's healthy and useful.