It’s not a big surprise that Obama selected Elena Kagan to be his nominee to replace John Paul Stevens on the Supreme Court, but it is a little bit disappointing. Glenn Greenwald has been on a rampage against Kagan, and he makes many strong arguments against her nomination. The strongest argument he’s made is that we don’t know a whole lot about her views because she has never been a judge and she has been pretty circumspect about her judicial philosophy. Basically, Obama is asking us to trust his judgment, because we don’t have a lot to go on in forming our own opinions. I encourage you to look at Greenwald’s arguments, but remember, there is a potential upside, too.
If she is confirmed, the court will have three women for the first time in its history. She’ll be the first Justice to serve without first being a judge since William Rehnquist. I think that’s a positive. She’s only fifty years old, so she could easily serve for over thirty years.
Having said that, I am not excited by this pick and I share some of Greenwald’s concerns about the court actually moving to the right a bit on its interpretation of Executive power. I wanted a pick I could support wholeheartedly, and I didn’t get it.
I do want to say that I am beginning to cringe whenever I find myself agreeing with Greenwald or Hamsher because I think the Establishment is inclined to do the opposite of whatever they say. I didn’t want Kagan, but watching Greenwald savage her made me feel like she was more and more likely to be the pick. I thought to myself ‘Good point, but please let someone else make that argument.’
And, while I share Greenwald’s anxiety about Kagan, I think she’ll probably be an excellent Justice. The problem is, I can’t be sure.
