The purpose served
Posted by Thomas Nephew on May 11th, 2010
I got an e-mail from a friend yesterday, with the line,
“I don’t see the purpose served by bashing Kagan from the left.”
I think the answer is that it’s not really Kagan who’s being bashed from the left — after all, not many people know very much about her. It’s the Democratic Party as a whole that’s being bashed from the left, at least that party’s upper, national echelons — very definitely including Obama. And as it becomes more and more plain that progressives wield no influence on that administration, the ultimate purpose of that is to depose that leadership or — taking a deep breath — to break away from that party.
By saying — by having to say — over and over and over again, “look at what Obama’s done now,” “look at what our party in Congress has done now,” there’s more and more room to consider that revolt, or that breakup. In the meantime, people will just quietly boycott it and walk away from it. Sure, Obama is well spoken and handsome — but do we agree with his choices? Is this really our party?
FISA Amendment Act. Abandoning the public option. Offshore drilling. Military Commissions Act. Vast escalation in Afghanistan. Cave-in on the Iraq surge. Seamless continuation of the Bush administration’s disrespect for civil liberties and “war on terror” policies. Torture goes unpunished, while its whistleblowers are persecuted and its critics silenced. Envisioning indefinite detention. Paltry, timid jobs programs in the midst of a terrible recession. Paltry, timid proposed financial regulations. Threats to Social Security. Abandoning Dawn Johnsen. Threats of war on Iran, dressed up within nuclear nonproliferation talk. Shameless fundraising for more Blue Dog Democrats — when the party won’t do anything with the ones it has (or to them when they defect). The Democrats seem like the Civil War general George McClellan — always wanting more resources, and then either doing nothing with them or doing the wrong thing with them.
The national thing we call the “Democratic Party’ — the DNC, the people on TV on weekends, the mail and web presence — is unloved and often not even liked by much of its “base.” Yet its members and functionaries often take their role and that base for granted — and then go their own way on issues like those above. That has created real and deserved hostility.
Now comes the Kagan nomination — maybe not the worst thing in the world, but certainly not a promise of forward progress either. As I wrote on facebook,
Once upon a time a president was elected in hopes of reversing the trend of terrible court picks like Thomas, Roberts, Scalia, and Alito. Instead, he picked Sotomayor and Kagan to the Supreme Court, and fixed a leak in the White House roof with a piece of cardboard. The End.
That comment met with some “thumbs up”s, but it and others like it have bewildered and put off friends and acquaintances too.
On Monday there was a debate on Democracy Now! about Kagan between two people I respect — my friend, neighbor, and State Senator Jamie Raskin, and Salon.com’s Glenn Greenwald,* with Raskin supporting and Greenwald challenging the Kagan nomination. Substantively, I’d give the debate to Greenwald, whose point about Kagan has mainly been how remarkably thin her public track record on the major issues of the past eight years has been. When pressed, Raskin was able to suggest one promising aspect of Kagan’s writings:
Her writings about the First Amendment, I think, are absolutely first-rate and exemplary, and I think that when it comes to Bill of Rights issues, I think she will be, you know, an extremely strong justice. [...] her core position on the First Amendment is that any time that the government engages in policy whose purpose is to interfere with the right of the people to decide themselves on important questions of public policy, that the governmental interference is itself illegitimate. So, you know, rather than saying that you look simply at the effects of a governmental action, you look also at what the purpose behind the governmental action is.
Like I said, promising; without a look at those writings, I can’t say more. I doubt we’ll learn anything more in the ‘vapid and hollow charade’ we call the Senate Judiciary Committee hearings either (Kagan’s own recommendations notwithstanding**), but it would be interesting to find out how far that attitude extends. For example, where does Kagan believe “state secrets” — typically a refuge of scoundrels, literally since the inception of the doctrine — end, and where does she believe the public’s right to know begins? Senators famously had the chance to learn just how thin the WMD case was in the Iraq War, even if many didn’t choose to read the intelligence estimate involved — might the public have been more diligent?
But when it came to the dominating issue of the past eight years — the use and abuse of executive power, and how to define and sanction that – Raskin admitted, “I wish I could give more comfort to Glenn on this question than I can [...] as to the other stuff, we just have to see how it evolves and to push things as much as we can to try to restore a proper balance among the branches.” He added “I can’t bring much consolation on that point, because we just don’t know.”
Fair enough, though it’s also fair to say that’s not a ringing defense or endorsement. But it also ran Raskin right into the buzzsaw of Greenwald’s hostility during and then after the debate, so that while Greenwald had a more substantive case, he arguably lost the encounter anyway. Greenwald linked to the debate on his blog with the comment, “Decide for yourself if he has a single substantive argument to make in her favor.“ Well, OK: Raskin did have a single substantive argument to make in her favor. (I’m hoping to learn more from him about Kagan.)
To return to the original topic of this post: Greenwald came spoiling for a fight. Raskin — again, a very solid progressive Democrat — may have expected more of a collegial discussion on what seemed like home ground. He didn’t get it — but Greenwald should have tried to avoid the hostile tone he took.
And so should I, if I want to be a part of changing the Democratic Party — or of persuading others to leave it with me. Like Raskin and Greenwald, we’re on the same side, or we should be. But by the same token, even a Jamie Raskin needs to be ready with specifics when he’s tapped to defend this Democratic Party’s choices. Being Kagan’s friend won’t do any more. Putting off the fight to yet another day won’t do any more. Obama wanting it won’t do any more.
=====
* Greenwald is also a Facebook friend of mine, though I’m not personally acquainted with him.
** UPDATE, 5/11: Not any more –Elena Kagan no longer thinks Supreme Court nominees should have to answer direct questions (Ward, Daily Caller), via Greenwald, who also links to this by GW professor Jonathan Turley: “For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.” Wish I hadn’t written “not the worst thing in the world.”
UPDATE, 5/12: Confirmation Messes (Kagan, 1995) is where she wrote ‘vapid and hollow charade’; via Scott Horton, who praises her ‘Presidential Administration’ article, and supports her nomination despite agreeing that “Obama has missed the opportunity to appoint a worthy successor to Stevens to lead the fight against rampaging executive power.” Elsewhere, it turns out she was a student of Sandy Levinson (”Balkinization”), and he supports her too. A major post at SCOTUSBlog provides links to and discussions of Kagan’s articles, including Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine and discusses her career in some detail.
Category: Post. Tags: democratic party, supreme court.
Thread RSS,
Comment, Trackback.
Print This
May 13th, 2010 at 10:21 pm
Scott Horton fair to a fault: his willingness to wipe the slate clean just makes him a patsy in these situations.
He was disturbed by some of Mukasey’s responses during the confirmation hearings, but gave him the benefit of the doubt and supported his confirmation as AG — something he quickly regretted. He’s disturbed by some of the indications about Kagan’s views, but gives her and Obama the benefit of the doubt.
Let’s hope he doesn’t have cause to regret it, because unlike an AG with two years to serve, this woman’s going to wield enormous power for the rest of her freaking life.
May 14th, 2010 at 11:04 pm
Good reminder, I’d forgotten about him going back and forth on Mukasey. To be fair to him, he came out against him (11/2/07) once Mukasey waffled on waterboarding, so while the hearings were still going on — at least, that’s how I read it at the time, I happened to mention it in a post of mine. Little late, of course, and maybe he changed his mind later on.
May 16th, 2010 at 5:25 pm
Greenwald may have taken the lesson you note from his Democracy Now appearance. He once again exposes the hollowness of the arguments for Kagan by Obama representatives (Greg Craig in this case), but much more winningly.
Craig: Kagan is “largely a progressive in the mold of Obama himself.”
Yep. Very much the same kind of “progressive”: one who will do nothing to upset the apple cart of power and wealth distribution in this country.
Kagan hired a boatload of faculty while dean at Harvard, and almost all of them were white men. Just the kind of transformative leadership we’ve come to expect from Obama: identity tokens who pull the ladder up after them, making themselves sound enough to back by the people who wield and protect power.
A “uniquely American” health insurance bill protects the profits and prerogatives of the insurance companies. A “forward looking” approach to detention, torture, and trials entrenches the law-destroying practices of the Bush-Cheney and Clinton cliques, while making sure no one can be held accountable but people at the bottom. A supposed “green jobs” initiative that starts off by sacrificing his most seriously progressive appointee in the face of screeching from right-wing nutballs, then goes on to promote scams like “clean coal” and tired debacles like nuclear power and offshore oil drilling, and meanwhile: those j-o-b-s?
May 16th, 2010 at 5:27 pm
Left off the link to Greenwald and Craig on Kagan [video].
May 17th, 2010 at 10:37 pm
Greenwald also had a 2d conversation with Lawrence Lessig on bloggingheads.tv that was more amicable than I understand their first one was. Lessig contends that Kagan’s views of executive power as portrayed in her “Presidential Power” article are not the “crazy view of the president’s power that Bush/Cheney had” — what Lessig calls the “uber-unitary executive” – but one that finds presidential power delegated to the president by Congress (“unitary executive by default”) rather than there already in the Constitution. Lessig continues that the latter, B/C/Yoo interpretation creates a King unchecked by Congress that should be rejected by all.
I guess I hope (and will see if I can confiirm) that Kagan develops this idea at more length and with more care than Lessig can. No matter how detailed the laws Congress passes, a mischievous or power hungry executive branch can find ways to delay what it doesn’t like and do (secretly if need be) what it does like, and clever lawyers will interpret Congressional silence on a particular scenario as consent to that. It’s just not in the nature of things that a person just out of the executive branch would think of ways and reasons to limit executive power, nor is it in this president’s nature (either) to find someone who would.