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Is Kagan a bleeding heart or right-wing 'Bushie'?

I'd be miffed if I were Elena Kagan. This morning, as President Obama introduced his new Supreme Court nominee, he predictably lavished her with praise as "one of the nation’s foremost legal minds" and "a trailblazing leader." He went on specifically to laud her work as solicitor general: "During her time in this office, she’s repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

In choosing to highlight these cases, Obama clearly was trying to play to the liberal wing of his party. Conveniently not mentioned were cases in which Kagan or her office argued for positions loathed by the left. For example, Kagan's staff argued against extending habeas corpus rights to detainees held in Afghanistan's Bagram Air Base. She personally urged the Supreme Court to read an antiterrorism statute to prohibit lawyers from advising U.S.-tagged terrorist groups about how to use peaceful and lawful means to advance their political objectives. Under her leadership, the Justice Department took virtually the same position as the Bush administration in defending the government's right to shield information from litigants using the state secrets doctrine. She argued in legal papers that federal judges had no power to order release into the United States of Chinese Uighurs wrongly detained at the Guantanamo detention center.

So which Kagan are we getting: the warm and fuzzy defender of Obama's "little guy" or the hard-right ideologue who would have fit right in as a "loyal Bushie"? The truth: Maybe both, maybe neither. We don't know. At least not yet.

The president -- a constitutional scholar -- made the mistake (or perhaps the political calculation) to attribute personally to Kagan the viewpoints of her government client in a few, select cases. Yet few lawyers are ever perfectly in sync with those they represent. Does anyone think, for example, that Ted Olson, President George W. Bush's first solicitor general, believed fervently in the righteousness of the McCain-Feingold campaign finance reform he defended against legal attack? I seriously doubt it, but Olson upheld his oath and carried out the task of his office by defending the constitutionality of a congressional statute. This didn't make him a true believer; it made him a good lawyer.

Kagan's work as SG should be critiqued on the quality of the argument and the integrity of the legal reasoning and not as a glimpse into her own legal psyche. (Of course, senators may ask her what her personal views are on these matters, but I doubt she'll be forthcoming.) I'm skeptical about either parties' willingness or ability to be fair or honest. Conservatives will likely jump all over Kagan for her Citizens United arguments and others that could be interpreted as left-leaning. Even though many liberals are disturbed by the right-of-center national security positions, they are unlikely to make a big fuss for fear of damaging the president politically. But can you imagine the furor if Kagan had been nominated by a Republican president and had taken these positions in court? The shouts would be deafening.

By Eva Rodriguez  | May 10, 2010; 2:50 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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Next: Michael Steele's idiotic criticism of Elena Kagan

Comments

By this article we clearly see that obviously these issues are not important in President Obama's choice. Would that this would make her appointment an easy process, but quite the opposite will happen: as we all know, the minority will have to make a mountain out ANY molehill.

Posted by: patriotgmalou | May 10, 2010 4:13 PM | Report abuse

What a joy it would be if Kagan turned out to be a closet arch-conservative.

The heads of the liberal fringers would all explode.

I'd pay to see that.

Posted by: battleground51 | May 10, 2010 5:43 PM | Report abuse

Why would Obama pick someone who so despises the military? Talk about birds of feather...

Posted by: cschotta1 | May 10, 2010 7:02 PM | Report abuse

As one who believes the Constitution should be interpreted to protect all people within this country (i.e. a liberal) I am concerned about Kagen as any true believer/defender of civil rights would have resigned when Obama asked her to defend Bush's outrageous state's secret doctrine. Obama did not even try to defend his indefensible position in supporting Bush's ridiculous arguments... but disingenously tried to claim it was an accidental argument to the 9th Circuit (complete BS) which is why I will not support him again.

Posted by: law1 | May 10, 2010 8:46 PM | Report abuse

Firedoglake reports that Kagan is a lesbian...it is a well-known fact.

Research her opinions on expanding presidential power and the theory of the Unitary Executive.

Posted by: joesmithdefend | May 10, 2010 10:44 PM | Report abuse

She strikes me as more than just a little bit expedient -- and pretty smug too. I guess you can't get past smug these days for Supreme Court nominees, but its nice to dream. Why so few expressed views on tricky issues?

Posted by: macalnic | May 10, 2010 11:03 PM | Report abuse

The most tiring thing about reading many of the comments is reading a liberal's comment in which he/she disagrees with something Obama has done and then states that he/she will not support him next time. They also proudly point out how they are all for justice for all etc. Am I interpreting this correctly? You are so committed to the cause that you'll not vote and let the "bad guys" get in and further erode the rights you so proudly proclaim to support? You folks on both the left and right do the same thing. Somehow it's hard to be impressed with your commitment to justice or the "cause" you proudly claim to support.

Posted by: Fergie303 | May 11, 2010 1:06 AM | Report abuse

Oh, rest assured, Ms. Rodriguez. Kagan is a bleeding heart liberal, probably a socialist. Pres. Obama would have it no other way.

Posted by: jefferson4 | May 11, 2010 1:16 AM | Report abuse

Rest assured, Ms. Rodriguez. Kagan is a bleeding heart liberal and probably a socialist. President Obama would have it no other way.

Posted by: jefferson4 | May 11, 2010 1:18 AM | Report abuse

On what basis does this writer or anyone else continue to refer to Barack Obama as a "constitutional scholar?"
He taught one course in voting rights for a number of years as a part-time instructor at the University of Chicago.
He published nothing while he was there. There are no books to his credit. No legal treatises. No articles.
Did he take anything beyond the basic constitutional law requirements at Harvard Law?
We don't know and neither does anyone else - at least no one who's telling.

Posted by: parkbench | May 11, 2010 1:20 AM | Report abuse

Rest assured, Kagan is a bleeding heart liberal and a socialist. Pres. Obama would have it no other way.

Posted by: jefferson4 | May 11, 2010 1:22 AM | Report abuse

There is nothing wrong with being openly GLBT and performing ANY role in society. I myself am a proud member of the GLBT community. That being said, being a public figure who is GLBT and still in the closet is NOT OK for several reasons. I don't care if you are Elena Kagan or Charlie Crist. It's not OK. It perpetuates the notion that being gay is something to hide and something to be ashamed of. It makes it harder for everyday people like me to live openly out of the closet. Please get out of the closet, Elena. You are not fooling anyone but yourself but you are in fact hurting others with your cynical cowardice.

Posted by: JohnnyLH | May 11, 2010 1:39 AM | Report abuse

Who is this Rodriguez woman, and what qualifies here to write a column for the Post?

Posted by: turningfool | May 11, 2010 4:24 AM | Report abuse

JohnnyLH writes:
"Please get out of the closet, Elena. You are not fooling anyone but yourself but you are in fact hurting others with your cynical cowardice."
---------------------------------------------------------

What a useless, 1960s concept. "Out of the closet"... Who gives a rat's patootie what someone's sexual preference is? It might have some relevance when it comes to deciding a few civil issues, but in general it has no bearing on her list of qualifications. There are few things more idiotic that someone in her position saying "I am a homosexual, and I'm proud of it". Can you imagine what would happen if she said, "I'm a heterosexual and proud of it"?

Posted by: iamweaver | May 11, 2010 5:22 AM | Report abuse

Living through the Obama era is an exercise in futility. Obviously dishonest and cynical, he offers legislation that is bought and paid for by lobbyists, and reneges on anything that he promised during the campaign. (All politicians do it, but he is even more transparent.) The nomination of Elena Kagan is almost as bad as Bush's nomination of Harriet Miers.

Posted by: Puller58 | May 11, 2010 6:56 AM | Report abuse

Nicely written. Can you perhaps dig deeper into her background before she was SG for a glimpse because I would like to hear your perspective.

Posted by: SarahBB | May 11, 2010 7:09 AM | Report abuse

"I'm skeptical about either parties' willingness or ability to be fair or honest. " Yep. The twits in elected office care about only one thing: re-election, at any cost, appealing to whatever they think is the largest group of voters who will show up at the polls. Hence the real danger of teabaggers and neocons. They do not have a coherent theory of government or a practical path forward to offer, but they are mad and they will vote. This dangerous minority can seize control of the government again and give us another, probably worse, version of the Cheney administration.

Posted by: frodot | May 11, 2010 7:18 AM | Report abuse

The Post: "Is Elena Kagan a bleeding heart or right-wing 'Bushie'?"

What an absolutely asinine question! If she was appointed by Obama she has much more in common with Karl Marx than President Bush. Enough said!

Posted by: liberalsareblind | May 11, 2010 8:17 AM | Report abuse

No one in the press seems to be asking about her sexual preference. It has been hushed up. What every happened to freedom of the press. Please let the American public know what she is. She could affect many laws regarding marriage rights. Stop closing the comment sections off to this discourse.

Posted by: rubdel | May 11, 2010 8:23 AM | Report abuse

University of Chicago law school...Hmmmmm?
First Bernardine Dohrn, then Kagan/Obama. Perhaps History Did Absolve Fidel!

Posted by: dru4819 | May 11, 2010 8:30 AM | Report abuse

Thank the crack pot libs for the propensity of presidents to nominate people to the Supreme Court without any or much of a judicial record.

One of the finest legal minds of our time, Robert Bork, was dragged through the mud by a bunch of dim wits like Ted Kennedy and other rotten politicians like Howard Metzenbaum (remember that loser) during his confirmation hearings. The hearings showed the world the true nature of liberalism which is for miserable, unhappy, elitists who think they know better than everybody else.

Posted by: djo4 | May 11, 2010 8:46 AM | Report abuse

All I know is that I would have preferred Wood, a person about whom you wouldn't need to guess.

My guess is that Kagan is a careerist/toady who believes that the "right kind" of President can do no wrong.

Posted by: rusty3 | May 11, 2010 8:53 AM | Report abuse

Let me get this straight. You are concerned that Kagan will base her Supreme Court decisions stricly on the law and not her liberal views.

Posted by: bethg1841 | May 11, 2010 9:03 AM | Report abuse

“She personally urged the Supreme Court to read an antiterrorism statute to prohibit lawyers from advising U.S.-tagged terrorist groups about how to use peaceful and lawful means to advance their political objectives.”

I think you meant to say “prohibit lawyers from teaching terrorists how to skirt the law and still attack the United States without getting caught.”

Jeebus, if that’s a “right-wing” position… I am at loss for words.

Repulsive. Good job, Obama, for not giving American Leftists what they want.

Posted by: ZZim | May 11, 2010 9:04 AM | Report abuse

Firedoglake reports that Kagan is a lesbian...it is a well-known fact.

Posted by: joesmithdefend

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Joe, this is not a legitimate line of discussion. If she doesn’t publicize her sexual preference (which she hasn’t) and then proceed to make an issue out it (which she hasn’t), then it’s none of our concern and not a legitimate topic for discussion.

Find something else to be concerned about.

.

Posted by: ZZim | May 11, 2010 9:09 AM | Report abuse

What fence did Rodriguez hop to do op-eds for The Post? Is she the paper's female Krapheiner?

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Posted by: wweryetruytieuy | May 11, 2010 10:01 AM | Report abuse

Why do pundits keep calling Obama a constitutional scholar? He taught some introductory voting rights course which any law grad in the top half of their class wouold be competent to teach. It was a part time gig. He didn't even publish a paper on the topic.

Posted by: Hector6 | May 11, 2010 10:10 AM | Report abuse

Like Obama, we know little of Kagen. Why? Because both have so little experience it is hard to evaluate potential performance. It is apparent that the Liberal strategy is to avoid controversy by nominating Liberals with minimal experience, then expose their true ideology when in office. A dangerous game Liberals gladly play to win power.

Posted by: 2009frank | May 11, 2010 10:14 AM | Report abuse

What a joy it would be if Kagan turned out to be a closet arch-conservative.

Posted by: battleground51

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Don’t be fooled by this disingenuous essay. The “right-wing” policies that Ms. Kagan defended were not established because of any ideological reason. They are simply practical solutions to practical problems. Former President Bush’s enemies labeled them “right-wing” policies because they were busily playing domestic politics with our national security. President Obama adopted the Bush security policies wholesale because he needs to be successful in the national security arena and these are the best policies for the job.

So Kagan is just protecting Obama when she defends these policies. She’s doing her job. It’s honest work. Defending practical policies that the President needs is hardly the act of a “closet arch-conservative”; she’s just an honest lawyer doing her job.

The purpose of this essay by Eva Rodriguez is to confuse you. Her intent is to throw trumped-up accusations of conservatism against Kagan in order to obscure her record (such as it is).

.

Posted by: ZZim | May 11, 2010 11:05 AM | Report abuse

Why do pundits keep calling Obama a constitutional scholar? He taught some introductory voting rights course which any law grad in the top half of their class wouold be competent to teach. It was a part time gig. He didn't even publish a paper on the topic.

Posted by: Hector6
=-=-=-=-=-=-=-=-=-=-=-=--=-

Because "constitutional scholar" sounds so much better than "untried neophyte" or "low-level political operative".

Duh.

By the way, he's getting lots of on-the-job experience.

.

Posted by: ZZim | May 11, 2010 11:08 AM | Report abuse

@ZZim wrote: "Defending practical policies that the President needs is hardly the act of a “closet arch-conservative”; she’s just an honest lawyer doing her job."

At the end of the day, isn't that what the job of any SG is? I don't agree with you all the time ZIM, but in this regard, I believe you have hit the nail on the head.

Obfuscating her qualifications and her ability to do the job is how Ms. Kagan's detractors elicit controversy where none exists. Her lack of judicial experience is due to politics and those same politics are now pummeling her with this omission on her resume. You can't have it both ways.

At the end of the day, Ms. Kagan is qualified for the job and intellectually capable of the responsibility. The rest is an exercize in posturing that does little to advance future nominees' interest in overcoming the nastiness to accept a nomination. That, to my way of thinking, is the greater tragedy in this. Since Bork we have set a precedence of villifying a nominee for political discourse that taints the pool of possible candidates. How does that serve the greater public good?

Posted by: JenAZ | May 11, 2010 12:06 PM | Report abuse

THERE ARE SOME OTHERS EXAMPLES ABOUT ..."WHAT WE KNOW AND WHAT WE DO NOT KNOW"

I will give you only two, this time;

LET'S CHECK REALITY;

WHAT WE KNOW...and what we do not know...let's take two examples;
________________________

1.SARAH PALIN

Born, Feb 11,1964 in Standpoint,Idaho.A true real american born citizen,REAL
PATRIOT,WELL EDUCATED,(for all documentations are available and open at public
records,..so,all that can be proven)

In addition,(and also can be proven),SUCCESSFUL,AND EXPERIENCED PUBLIC SERVER / ADMININSTRATIVE-EXECUTIVE SKILLS AND ACCOMPLISHMENT WELL DEFINED,ROUNDED INSIGHT,COMMON SENSE AND DOES REPRESENT THE AVERAGE EVERY DAY AMERICAN JOE AND JANE...

INTEGRITY, HONESTY AND DISCIPLINE ARE HER TRADEMARKS,..
______________________________

2. BARACK OBAMA

Born...???,...education,...???,...(no documentation for everything is with a tight
lid...is it not?)...and so we only can 'see'...as...'experience'?;...IS,...165 days in the senate,...and over a year,DISMANTELING THIS COUNTRY,...

Serving as propagandist/speaker to THE CHICAGO MAFIA-STYLE CORRUPTED POLITICAL MACHINERY (FROM WHERE HE EMERGES),...NOW IN WASHINGTON,DC,... an organization that we can called 'THE OBAMA GANG'

DECEPTION,DISHONESTY,LACK OF INTEGRITY AND FRAUD ARE HIS TRADEMARKS.

So,....what is credible about Obama?...Perhaps now everyone can see the dilema we face in the attempt to answer anything about the man.

Any questions?...and how that works out there?

Daniel Cabrera
Merrillville,Indiana

Posted by: morcab | May 11, 2010 12:12 PM | Report abuse

Kagan adores Obama, she is a stealth bleeding heart liberal aka Greece

Posted by: jblast2000 | May 11, 2010 12:35 PM | Report abuse

Since Bork we have set a precedence of villifying a nominee for political discourse that taints the pool of possible candidates. How does that serve the greater public good?

Posted by: JenAZ

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

It doesn't. The President is entitled to pick whoever he wants, as long as they have the technical skills to do the job. She has them, so it's case closed as far as I'm concerned.

I think it's a fair assumption that she will pursue liberal policies once she's on the bench. So what?

The balance of powers ensures that we have a balanced government. If the Court drifts too far to the Left, that will boost Conservative candidates for Congress and the Presidency, pushing those institutions to the Right.

.

Posted by: ZZim | May 11, 2010 1:04 PM | Report abuse

Mr. Cabrera, Sarah Palin was born in Sandpoint, not Standpoint, and "well-educated" is a relative term. She went to North Idaho College, Matanuska-Susitna College, and the University of Idaho, emerging with a bachelor's degree in communications. Barack Obama attended Occidental College for two years, then got his B.A. from Columbia then graduated magna cum laude from Harvard Law School. Just thought I'd clear that up for you and please stop "dismanteling" the English language.

Posted by: dnahatch1 | May 11, 2010 1:57 PM | Report abuse

Let me get this straight. You are concerned that Kagan will base her Supreme Court decisions stricly on the law and not her liberal views.

Posted by: bethg1841 | May 11, 2010 9:03 AM |

===========================================

We can only hope and pray that's the case. The fact that she's getting flack from both sides is a good thing.

Posted by: bbface21 | May 11, 2010 2:27 PM | Report abuse

It wouldn't matter to conservatives if Kagan was a charter member of the Federalist Society - she was nominated by Obama so her views must be suspect.

Posted by: EnemyOfTheState | May 11, 2010 3:49 PM | Report abuse

WANT FREEDOM OF SPEECH LIMITED? MS. KAGAN IS YOUR WOMAN.
Comments
LETFREEDOMRING2 wrote:
If you are in favor of banning free speech then Kagen is your best bet. She fought to ban freedom of speech for corporations and unions. She fought as the Dean of Harvard to ban the military's right to equal free speech on campus.

Those who don't understand what she and Obama stand for, here is a primer on video you might want to watch.
John Roberts our Chief Justice pointed out in his fine decision protecting freedom of speech that the classic Mr. Smith Goes to Washington could be banned under the FEC ruling that banned the movie about Hillary.

http://www.youtube.com/watch?v=PeGlzEavpTM

Posted by: LETFREEDOMRING2 | May 11, 2010 8:20 PM | Report abuse

Ok, I am not an attorney, a professor in any institution of higher learning or a government employee, but I know a ringer when I see one. Supreme Court nominee Elena Kagan is as original an American as Obama was as a candidate for President of the US. Picture Kagan's face in place of Obama in the change art of the election. Interestingly one sees a similar picture. Obama as an upstart,a man of the people, one that represents and motivates and organizes. Similarly picture Kagan one that is a woman representative of some people, motivates some and organizes some. Those that question look for comparisons between the two and one doesn't have to look far. They both organized and politiked in Chicago. They both went to Ivy League schools and politiked. They both attended Ivy League Law Schools and politiked. They both became Lawyers from Ivy League schools and politiked. He bought his way to Congress. She bought her way to the leadership of an Ivy League School. Their views vary little, their politics mirror and their paths have criss-crossed for years. He, historically the President of the US. She, a potential job for life and potentially a person in a position to manipulate of our constitution, as Supreme Court Justice. God Help us all............

Posted by: davispope | May 11, 2010 11:42 PM | Report abuse

WOW. And you wonder why print media is losing money. This is the biggest GARBAGE article I have seen in the WAPO in about an hour. She is a FLAMING liberal and EVERYBODY knows it.
She HATES the military;
She is FOR gay rights, (as opposed to everyone elses);
She wrote a Harvard Law Review paper on using the Executive Privilege for "progressive" (spelled socialist) goals;
She has drank the Kool aide on the "environment" and the false global warming scam.

I find it funny that all of the MSM "News" programs, and the more liberal papers (like this one) are PAINTING her conservative. There is something about painting, it is used to COVER UP what one does NOT want to be seen. Funny they are not crying "foul" on her pick, as they did with REAL conservatives. That should tell you something.

www.livingfortruth.wordpress.com

Posted by: 7steppeaceplan | May 12, 2010 8:12 AM | Report abuse

WOW. And you wonder why print media is losing money. This is the biggest GARBAGE article I have seen in the WAPO in about an hour. She is a FLAMING liberal and EVERYBODY knows it.
She HATES the military;
She is FOR gay rights, (as opposed to everyone elses);
She wrote a Harvard Law Review paper on using the Executive Privilege for "progressive" (spelled socialist) goals;
She has drank the Kool aide on the "environment" and the false global warming scam.

I find it funny that all of the MSM "News" programs, and the more liberal papers (like this one) are PAINTING her conservative. There is something about painting, it is used to COVER UP what one does NOT want to be seen. Funny they are not crying "foul" on her pick, as they did with REAL conservatives. That should tell you something.

www.livingfortruth.wordpress.com

Posted by: 7steppeaceplan | May 12, 2010 8:13 AM | Report abuse

NewsBusters: WaPo's Eva Rodriguez Spins Kagan as 'Hard-Right...Bushie'
http://newsbusters.org/blogs/tim-graham/2010/05/12/wapos-eva-rodriguez-spins-kagan-hard-right-bushie

Posted by: StewartIII | May 12, 2010 11:22 AM | Report abuse

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