At 10:00 a.m. ET, President Obama will introduce his solicitor general, Elena Kagan, as his choice for associate justice of the Supreme Court. The pro-forma criticism will come from the right; the more interesting response will be from the left -- whether Kagan is progressive enough, whether she endorses a variant of the unitary executive theory held by John Yoo and Dick Cheney, whether her scholarship is up to snuff, whether her views on campaign finance mirror those she was asked to argue for as SG.
(Thanks, Gallup, for telling us that 42% of Americans, roughly the same number who identify as conservative, want a conservative jurist.)
There will be an event at the White House, of course, which means that the Groups will be notified; these are the acronymed collection of Democrats who need to be cared for and fed by the liaison operation at the White House. What happens next is going to be fairly predictable, given how long the White House and Republicans have been preparing for a Kagan nomination. (Obama first signaled his interest in nominating Kagan at a meeting with close advisors as early as a few DAYS after his transition -- when he also suggested he would select Sonia Sotomayor first.)
Kagan is part of the club. She was a domestic policy adviser during the Clinton administration. She tried to get Obama to become a Harvard Law prof. She and he are brilliant, detached, and of like minds. She has many ties in the administration. Like Obama, she seems to be a proponent of a vigorous constitutional system of balanced powers, in which Congress, the Courts and the Executive Branch compete transparently. Critics of her interpretation of the laws of war ought to realize that this interpretation reflects her boss's own.
The more intense fire will come from the activist left, whose representatives have already voiced objections to Kagan's record of jurisprudence, her Cantabrigian clubbiness, her record on diversity, and the way that she seems to have constructed her career to leave as little in the way of a paper trail as possible. Remember, all judicial battles are fought on the right's terrain, so Democratic judges always have to pledge fidelity to a legal formalism they don't really believe in. As long as the Democrats have the votes, Republicans will have to grudgingly accept that this is the reality behind confirmation-process appearances. The critique from the left has been assisted by Ed Whelan, an influential commentator on the right, who appeared to compare Kagan's pragmatism to prostitution, borrowing a quip from Bernard Shaw. ... BTW: seven GOP Senators voted for her confirmation as SG.
Does the White House know that a blog post from Glenn Greenwald means more to bookers on MSNBC than a press release from the Leadership Conference on Civil and Human Rights? (Similarly to the way that, in gay rights circles, it matters whether the Servicemembers Legal Defense Network gets invited to top-level meetings on Don't Ask, Don't Tell, more than what the Human Rights Campaign does or says.)
Consultations with Senate Democrats and Republicans will begin Wednesday or Thursday.
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