Greenwald bows to political reality:
As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That's just how things work. They'll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she's a fine pick. In reality, no matter what they know about her (and, more to the point, don't know), they'll support her because she's now Obama's choice, which means, by definition, that she's a good addition to the Supreme Court. Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan's confirmation.
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.
What is striking...is that the controversy probably tells us little about what kind of Justice she will be. Politicians (and deans) finesse issues all the time, and good ones (like Obama and Kagan) offend as few people as possible in the process. Judges, on the other hand, decide. Finessing is usually not an option. It’s a good and healthy thing that Obama decided to end the monopoly of former judges on the Supreme Court. But the experience of judgingthe agony of making that up or down decisionis unique, and it will be something new for Kagan. The gays-in-the-military controversy illustrates just how different her old jobs are from her likely new one.
Adam Serwer looks over Kagan's record on executive power:
As Tom Goldstein has noted, when Kagan asserted the executive's authority to detain al-Qaeda members without trial under the laws of war, she was stating what her prospective boss had stated earlier. Even prominent Bush critic Dawn Johnsen came to the same conclusion when asked a similar question during her hearing. Kagan signing onto this criticism of the Graham amendment suggests far more skepticism of executive power in the realm of foreign policy than I initially assumed -- it puts her, in 2005 and prior to Hamdan, on the same side of the detainee question as the lawyers at the Justice Department who were smeared by Liz Cheney and Bill Kristol.
That said, Kagan's record is mostly blank. This letter is not a record. To borrow Goldstein's metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that -- given her relative silence -- she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.
And William Jacobson highlights Kagan's view of same-sex marriage that there is no constitutional right to marriage equality:
This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.
While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.
Reasonably assuming the four conservative judges share Kagan's view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.
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