NBC News: Elena Kagan Tapped for Supreme Court

Minutes ago on MSNBC, Pete Williams reported that Barack Obama has selected Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the United States Supreme Court. If confirmed, Kagan would be just the fourth ever woman to serve on the high court. More as we hear it...

UPDATE by desmoinesdem: The Above the Law blog saw several "clues" over the last few days that the president would pick Kagan.

Constitutional lawyer Glenn Greenwald laid out a devastating case against Kagan last month, and he supplemented that on Sunday with more links and commentary.

[UPDATE by Jonathan]: A couple quick points I'd like to hit on:


  1. Some might hit Kagan for not having prior judicial experience. It's worth noting, however, that more than a third of Supreme Court Justices in history (38 of 111) have come to the high court without any prior judicial experience. It is also worth noting that Kagan would have come to the court with such experience had Senate Republicans not blocked her confirmation to a lower court more than a decade ago.


  2. Some say that Kagan doesn't have a paper trail, or that she hasn't written anything monumental. I haven't read everything she has written, but I do know that her seminal administrative law article, which was named the year's best article by the American Bar Association’s Section on Administrative Law and Regulatory Practice, is taught in law schools.

More thoughts later...

Tags: Supreme Court, SCOTUS, Elena Kagan (all tags)



mildly disappointed

I think the White House is counting on the Goldman Sachs stuff
not being very important, and thinking that most of this was disclosed in 2009.  It's Rahm's choice, I'm sure.

I know Jerome, Charles and Nathan are going ballistic in varying degrees....

But Diane Wood, the best choice, would have a difficult path to 60 votes in the Senate because of the abortion issue.  Then again, pro-choice proponents have lost the messaging war for the past 10 years.


by esconded 2010-05-09 10:30PM | 0 recs

I kind of feel the same: mildly disappointed.

Even though I just started learning about her recently, I guess she's not the most left-leaning choice, and her opinions on improtant matters aren't well known.

I disagree with blaming this on Rahm. I feel this was Obama's choice. We can't blame Rahm every time Obama does something we disagree with.

I guess we'll learn more about where she stands on important matters during confirmation hearings.

by NoFortunateSon 2010-05-09 10:38PM | 0 recs
RE: mildly disappointed

My degree is pretty mild; all i know is she took money from Goldman Sachs, Glen Greenwald thinks she's snake oil, and she could be GLBT but only if you read the tubes and the WH says no. I can't get too excited about this, given she's a blank slate pretty much.

by Jerome Armstrong 2010-05-09 10:47PM | 0 recs
I'm sure she'll be okay

The last time a Scotus nod was filibustered was in 1968 of a judge who was a little corrupt.


Thomas was confirmed with 52 votes in a D Senate. Wood was confirmed by a R senate, right? T

If Kagan is the best we can get with 59 Dems (not that she's horrible, but this was our last good chance), just imagine Ginsburg's replacement next term.

by bay of arizona 2010-05-09 10:57PM | 0 recs
RE: I'm sure she'll be okay

I reject your premise that because Obama is choosing Kagan, it would have been impossible for anyone to the left of Kagan to be confirmed. What makes you think Obama desired to nominate the most liberal judge he could get away with?

If he gets a chance to replace Ginsburg, he will probably move the court even further to the right.

by desmoinesdem 2010-05-09 11:17PM | 1 recs
It doesn't work that way

They don't average up where each of the 9 justices fall on the liberal versus conservative spectrum to automatically render a judicial decision.

An extremist judge rewards the party base, and little more.

I concede that I am somewhat confused and disappointed by this decision, although I am withholding judgment until I learn more. But I reject the simplistic notion that this moves the court overall one way or the other. The court is far more complex than that.

The mark of an important liberal justice is not how far they are to the left, it is how effective they are at persuading the other side. A far left judge can write all the inflamatory dissenting opinions they want and we'll all clap and cheer, but at the end of the day, it changes nothing. The argument made by others for Kagan is that she possesses the power of persuasion. I don't know if I agree with that, or even if I can, but I don't agree that the court should be assessed by the weighted arithmetic distribution of political leanings.

by NoFortunateSon 2010-05-09 11:56PM | 0 recs
RE: I'm sure she'll be okay

I am saying if Obama thinks she is acceptable when there are 59 Dems, he will be picking a moderate republican next year when there are 52.

by bay of arizona 2010-05-10 01:12AM | 0 recs
RE: I'm sure she'll be okay

That is probably true, but that doesn't mean Obama did the best he could with the hand he was dealt.

by desmoinesdem 2010-05-10 08:38AM | 0 recs
I don't care that she's not a judge

but I do care that she apparently sees few limits to executive powers.

by desmoinesdem 2010-05-09 11:15PM | 1 recs
RE: I don't care that she's not a judge

Have you read her administrative law article? Because it's not really about foreign affairs/unlimited executive power in the way envisioned during the Bush administration.

by Jonathan Singer 2010-05-09 11:22PM | 0 recs
RE: I don't care that she's not a judge

She was a passive bystander while the Bush administration trampled the constitution. Many other legal scholars spoke out, but she didn't.

She was probably the most conservative person on Obama's short list. I shudder to think who he'll appoint when we have a smaller Senate majority.

by desmoinesdem 2010-05-09 11:31PM | 1 recs
Not true

in 2005, she called military tribunals "fundamentally lawless"


I'll admit it, on that alone, she's already to the left of me.

by DTOzone 2010-05-10 11:17PM | 0 recs
RE: Not true

She didn't call military tribunals "fundamentally lawless."  She said it would be fundamentally lawless if Congress passed Lindsey Graham's amendment to strip federal courts of the jurisdiction to review detention by the Executive Branch.

by Steve M 2010-05-11 07:21PM | 0 recs
So did Dawn Johnsen

no one seemed to mind.

Executive Branch appointees are going to see few limits to executive branch powers.

by DTOzone 2010-05-10 11:18PM | 0 recs


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