After long thought, I think the best popculture response to the Elena Kagan nomination is this:
Alvy Singer’s rant against Allison Porchnik in Annie Hall sums up my gut reaction after these past few days. Usually when I reference Woody Allen, its to lend praise to our Jewish alpha dog, who first introduced the idea that the nebbish, neurotic Jewish guy can actually get the girl… kinda. But in this circumstance the line speaks for itself. However, thats not to say that my only opposition is out of some sort of self-loathing or Texan hatred of everything Northeast. Though that may be part of it. Indeed, my strongest reason for opposition (or at least not complete support) is political. She is not liberal enough.
Elena Kagan isn’t simply liberal enough. Despite accusations of her insane socialism, largely based on her Princeton senior thesis, which I have yet to read (PDF: kagan thesis), she has shown a record of middling DLC-style political compromise . There are legitimate arguments to be made for strong liberal positions on the court. Where is the justice arguing for substantive due process protection of medicinal marijuana, not to mention gay marriage? Where is the justice arguing for broader expansion of the equal protection clause, not to mention restarting privileges and immunities? These arguments exist, and in fact have been almost made on the Supreme Court (Cruzan v. Director, Missouri Dept. of Health, Lawrence v. Texas ). But the real person to blame for this isn’t Kagan, who must be honest to herself, but Obama himself for nominating her. Former Justice Joseph Crouch explains how I think lots of people feel:
Now, one could argue that her past positions have not been judicial, but political, and thus her actions should be viewed through a different frame. Or that while she has a short record, Obama can guarantee a strong liberal position. And one could argue while that position may be far out where they should be, the goals now shouldn’t be to expand the liberal agenda, but to maintain the gains made over the past decades. I disagree.
I do not expect a broadening of liberty interests to be the majority opinion, but I want someone on the court to just make the arguments. Young conservatives read the opinions of Scalia and Thomas, and it gives them a drive and inspiration to power their youthful political interests. Liberals have to look back a few decades to really get that inspiration. Even simply considering whether to get involved in the legal field, strong conservatives see that they can go far if they stick to their principles, just as the relatively young Roberts and Alito were rewarded. Liberals get the message that if they want to succeed, they need to keep a clean record and not create a strong record for liberal causes. Democrats seem to view that record as a liability, rather than how conservatives see their own similar recrds as a strength. This merely drives liberal opinion to the center and alienates liberal ideas that are reasonable and rational, yet viewed as too far out. And those views will continue to be seen as too far out by the public, while far-winger conservative ideologies in the form of justices’ opinions will be thrust into the public sphere as supposedly normal political views, hiding their extremity.
And what is the purpose of opposing this conservative march if those who fight for strong liberal causes get left behind when it comes to choose our best? A functioning political system needs strong opposing parties, with competing ideas, and the Democrats are laying down on their job.
Indeed, it doesn’t just show that Obama has refused to recognize the best and brightest legal mind amongst liberal thinkers, but it shows that he is betraying one of the implicit messages of his 2008 campaign: The importance of grassroots work.
As Obama’s personal origins and the style of his campaign seemed to communicate: greatness can come from anywhere. Whether the small town volunteers who made history or Obama’s humble beginnings and fairytale rise, it was about eschewing the usual power structure and replacing it with people power. But for his supreme court nomination, Obama went with the traditional Ivy League, Upper West Side, Harvard Law School, Clintonista insider, almost as if she were a creation by Mark Penn himself.
There were great candidates with strong liberal opinions, from outside the usual view political realms of influence. Great justices from Texas, Montana, or even California, who could disrupt the usual power patterns and show students all across the country that you don’t need to go to an Ivy League school to make it to the top: Pedigree is not the measure of the day, but talent and achievement. But that is not what Obama is communicating with this nomination.
Even just choosing someone who didn’t go to an Ivy League school would send the message that states are not destiny. We can have smart, educated liberal justices in Red States, just as we can from Blue States. This is something that Obama himself talked about oh so long ago in 2004″
We have Supreme Court Justices in the Red States… or do we? Obama doesn’t seem to think so, with his New York domination. His choices may be fine justices, but it is a sign that liberals from Red States shouldn’t aspire or work hard, because they won’t be recognized. And it sends a message to people in Red States that liberals do not care about them, and when push comes to shove, Democrats will alway choose the Northeast buddy… giving in to Harvard nepotism. There used to be a time when Obama thought it was important to send a message anyone can rise to greatness, that America has a place for a skinny kid with a funny name.
But I guess that idea is old hat. Go back with the tried a true, Harvard educated, East Coast Elite, Smartest Guys in the Room. That’s worked out great for Democrats in the past.