| Ezra Klein today posted clips from the Rachel Maddow show in which Maddow interviews Glenn Greenwald and Lawrence Lessig for a case against and for Kagan. You've probably already read Greenwald's case against Kagan - essentially, he argues we have no idea what her ideology is, and what little we do know hints at support for executive power - but you may not be familiar with Lessig's, that Kagan was selected as a "persuader," someone to bring conservative-leaning justices over to more left-friendly decisions. (And Klein was not the first to notice that Kagan's charming, consensus-building politico personality is a lot like the president's.)
Maddow also had Dahlia Lithwick on - Slate's incomparable SCOTUS commentator - to pretty much shatter any notion that Kagan would be able to forge compromises with the likes of Roberts, Alito, or Scalia.
Of course, it's not Scalia, Roberts, or Alito who she has to persuade, but Anthony Kennedy. Jeffrey Rosen:
Obama has signaled that he wants a justice who can win Justice Anthony Kennedy to the liberal side of the Court in 5-4 votes. Given Kagan's demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role.
Except that Scott Lemieux can find no evidence that Kennedy is "easily manipulated." "...[S]ome some Court observers conflate moderation with indecisiveness," writes Lemieux, "Just because a justice's votes are less predictable than some of their colleagues' doesn't mean that they are to be subject to manipulation." He also notes that the also-considered and more liberal Diane Wood "demonstrated ability to influence conservative colleagues..."
While Kagan may be unknowable, what is clear is that Obama missed an opportunity to have a known progressive voice on the court. |
