Network News

X My Profile
View More Activity

Elena Kagan is not Harriet Miers or David Souter


The New Republic seems to be keeping Dana Milbank's 1998 profile of Elana Kagan behind a paywall, but I read it on Nexis (Update: Here's a free version) and it's a good reminder that though Kagan's thin written record makes her relatively hard for the public to know, she's arguably better known to the people appointing her than any recent nominee. It's not just that she's served as Obama's solicitor general, but that she served on the Domestic Policy Council and in the White House Counsel's Office under Clinton, and then as a dean at Harvard while Larry Summers was leading the university.

Of course, that sounds like the same argument George W. Bush made about Harriet Miers. But it's not, really. Miers was a Bush loyalist, which made her personal politics extremely cloudy. Kagan has served multiple terms in Democratic White Houses, and her association with the Domestic Policy Council and Summers makes it pretty safe to say that she's on the technocratic center-left that's defined the last two Democratic administrations. She's a Democratic executive-branch staffer, not a loyalist, which makes less of a wild card.

So where it actually leaves you is pretty much where Glenn Greenwald says it leaves you: Deciding whether or not to trust establishment Democrats. But that said, I don't think there's much chance of Kagan being a Souter-esque surprise. She might be oddly canny among her friends, but it strains credulity to suggest that she would repeatedly serve in center-left White Houses if she wasn't interested in center-left policy, or that she'd have thrived if the people around her didn't feel they knew her positions well enough to trust her judgment.

Nominating Kagan for the court is a bit like Joe Biden naming his former chief of staff, Ted Kaufman, to replace him in the Senate. The choice is based on private knowledge rather than public knowledge, but it's not based on an absence of knowledge.

Photo credit: By Nikki Kahn/The Washington Post

By Ezra Klein  |  May 10, 2010; 1:18 PM ET
Categories:  Legal  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Can men still be appointed to the Supreme Court?
Next: Lunch Break


I was hoping that this would be the place where Obama would forgo his tendencies toward accommodation of the batsh*t crazy republicans and his centrist tendencies and pick a true progressive for the court. Oh well. Actually, Kagan may be a closet progressive, but there is no sign of that right now. Insiders may know her better, but most of the insiders are DLC types that are always ready to sell progressives down the river for basically nothing from the republicans.

Posted by: srw3 | May 10, 2010 1:37 PM | Report abuse

When are people going to come around to the idea that Obama never was, and never will be, a far-left progressive. He's certainly liberal, but in the way that he believes in general principles but will compromise and work with his opponents to get something done. He's not going to sink a ton of political capital getting another Brennan on the bench, as much as I may love Brennan. He's going to nominate someone that hold generally liberal principles but will be roughly at the left side of the center.

I don't think that's necessarily bad or good, just that he honestly thinks that genuinely intelligent and earnest people can get things done. I may wish I had another Brennan, but I can't deny that that's a legitimate position for him to take.

Posted by: MosBen | May 10, 2010 2:08 PM | Report abuse


I think people (on both the left and the right) may have been deluded to think he was far left by the famous drudge report on Healthcare where Obama was talking to unions about the way to get to single payer. Conservatives used it as a "gotcha" moment while progressives felt they FINALLY had found their man.

That being said I think Kagan will be fine because while she's young it still only replaces a liberal with another liberal. Its not as if Roberts was leaving. if it was a liberal replacing a conservative and the balance shifted I think you'd see a much greater chance of a filibuster.

Posted by: visionbrkr | May 10, 2010 2:19 PM | Report abuse

Since it's the elites that know her, why would expect anything but an executive power backing, corporate power backing, vaguely socially liberal (when there's no cost to them) cipher? Throw in a cost-benefit analysis for your First Amendment rights and you have the technocrats wet dream.

I'm darn elated

Posted by: williamcross1 | May 10, 2010 2:46 PM | Report abuse

It has been many years since the confirmation of a Justice who turned out to be more liberal than the Justice being replaced, and that trend will not be broken with Kagan's appointment. Certainly on questions of executive power in matters such as indefinite detention, she is not "center left."

Now we have to endure the boring ritual of the endless questioning and debate about her potential for "judicial activism" prior to her inevitable confirmation.

Posted by: Patrick_M | May 10, 2010 3:22 PM | Report abuse

Her mother and brothers were public school teachers and her father was a tenants' rights lawyer. Sure she went to Princeton and Harvard, but she has to have been steeped in social justice concerns growing up, and she obviously reveres both of her parents. Moreover, while she is generally credited with hiring more conservatives as Dean of Harvard Law, she also set about improving and humanizing student life in significant ways, including revamping the first year curriculum and adding amentiies for physical exercise. These things say to me that she understands the issues important to ordinary people while at the same time she is obviously brilliant and can massage the big egos. Ezra's point that the people most involved with appointing her really know her is well taken. They include not only Obama and Larry Summers but Joe Biden (for whom she worked on Justice Ginsburg's confirmation).
A lifetime appointment to the Supreme Court is a liberating experience, and I would expect her to be more liberal than her critics on the left believe, but also more original and interesting than most are expecting. I'm not worried. She'll be fine.

Posted by: Mimikatz | May 10, 2010 3:31 PM | Report abuse

I, for one, trust that Kagan's scarcity of recorded opinions will be generously compensated for by the amount of opinions and speculation we'll hear about her in the coming weeks. Trust isn't always a good thing.

Posted by: slag | May 10, 2010 3:37 PM | Report abuse

Common Folks get your head out of your A....This woman is a Lesbian, hates the military and encourges same sex marriages. She is a hmiliation not a plus to the Supreme Court. This is nothing more than an Obama joke that insults good sense and moral worth.

Posted by: dlw2010 | May 10, 2010 3:58 PM | Report abuse

Ezra (and Obamalamadingdongs who support Kagan and anyone who thinks that Obama is any kind of liberal):

If one pays attention to what Obama does, rather than how nicely he says things, you will correctly place him right of center. How far right depends on the subject matter.

Kagan is, as Greenwald suggests, significantly to the right of Stevens and light-years away from center-left. She is a supporter of executive power that allows the president to become judge, jury and executioner.

This is to the right of Nixon and, likely, Reagan.

You are all working with a left/right spectrum that, on the left, starts with anyone to the right of Kucinich and continues rightward to overt fascism.

This is what allows the MSM to proclaim Obama as a liberal and the lap dogs as centrist or moderate.

This is deeply ahistoric and has allowed the Dems to proclaim the Pharmacy-Insurance-Medical Equipment Profit Enhancement Act as historic "reform." Wake up people, and smell the corporatism.

Posted by: michtom | May 10, 2010 4:04 PM | Report abuse

Stevens was not a liberal. He was appointed by Gerald Ford and he never moved left. He was a traditional judicial craftsman with a strong commitment to the rule of law.

Kagan, as we know, is a pure pragmatist.

Stevens opposed the activist program of the right wing of the court because it does violence to the constitutional structure of our government. This is a legal basis for opposition, not a political one.

There's nothing in Kagan' record to show that she's got any similar commitment to the rule of law. As far as we can tell, she's entirely a political animal.

Posted by: Bloix | May 10, 2010 5:49 PM | Report abuse

dlw2010 new troll today.

Please don't feed the trolls.

Posted by: srw3 | May 10, 2010 6:12 PM | Report abuse

Ezra with a little bit of help you're about to kick Elana to the curb and I'm most willing to help this;Obama's solicitor general, but that she served on the Domestic Policy Council and in the White House. Keep up the good work Ezra, we have her on the run thanks to you! Little T-Boca (Annie)

Posted by: tboca | May 10, 2010 6:19 PM | Report abuse

For me, most of all, the president
knows her.
His call, I voted for him, I believe in his judgment and heart and NEVER treated him as a blank slate to scribble a far left wish list on.
That would render us all deaf and
clueless as he had been pretty clear in the campaign where he stood on issues. And that wasn't far left.
He wasn't just sayin'-really.
Just think of Bush's selections and
Obama's. Are we really having a problem here?

Posted by: dcunning1 | May 10, 2010 11:35 PM | Report abuse

Kagan is a far-left Obama loyalist. Dionne thinks anyone who isn't a Republican is a moderate, middle-of-the-road individual. Kagan stood before the SCOTUS last September and defended bill 441B which, Kagan said, allows the feds to censor video, radio, newspapers, even pamphlets. When asked by Justice Ruth Bader Ginsberg if the feds could also censor books, she said yes. Then Kagan said that if they censored a book that decision would quickly be overturned. Kagan is no "moderate" but is a far-left-winger like the person who picked her, Obama. Do not let the Dems or their suck-up media fool you. Kagan is a bad idea. Tell your senator to vote no.

Posted by: RonKH | May 12, 2010 9:19 PM | Report abuse

this is almost too much. kagan is selected because she is considered bullet-proof with very little track record and a member of a protected group. she is all about more power to the federal govt. and less on individual rights. klein here suggests that she is somehow better than mier's because meirs was a loyalist,,,and kagan isn't?? more chaff to confuse everyone. look at it this way,,,
you have to know and understand obama’s disdain, if not outright disrespect, for the supreme court and the constitution. he believes it is a faulty document that does not allow the govt. to do enough when the govt. should, in his mind, control/manipulate social inequalities. the ultimate adjustments/decisions to the constitution comes from the supreme court. as we have seen in the past,,,,,there have been some very poor decisions that chiseled away at an individuals and a states powers while moving more power towards the federal govt. if one was going to manipulate law and drive social forces towards socialism, what better way than through the courts and especially the supreme court. kagan is chosen because she is bullet proof (very little background plus from protected groups) and because she shares obama’s passion for “social justice” and socialism. she may think on her own but she doesn’t have an original thought in her head,,,she will repeat every error made in history by deciding on the side of “unfortunate” circumstances vice applying the law.
kagan will be the disrupter for many years to come,,,not basing decision on law,,but on feelings. and we all know what that is doing to america.

Posted by: infinitewisdom4u | May 13, 2010 1:20 PM | Report abuse

The comments to this entry are closed.

RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company