Monday, May 10, 2010

Kagan is Not Harriet Miers

Glenn Greenwald, who opposes Elena Kagan's selection, complains about Democrats who line up to support her, working from a Matt Yglesias tweet (and see also Ygesias today).  Yglesias said:
Argument will be simple: Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama
To which Greenwald replies:

Just think about what that means.  If the choice is Kagan, you'll have huge numbers of Democrats and progressives running around saying, in essence:  "I have no idea what Kagan thinks or believes about virtually anything, and it's quite possible she'll move the Court to the Right, but I support her nomination and think Obama made a great choice."  In other words, according to Chemerinksy and Yglesias, progressives will view Obama's choice as a good one by virtue of the fact that it's Obama choice.  Isn't that a pure embodiment of mindless tribalism and authoritarianism?  Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush's selection of Harriet Miers to what progressives are almost certain to do with Obama's selection of someone who is, at best, an absolute blank slate. 
This is nonsense.

Elena Kagan is not, of course, a blank slate.  She's nothing like Harriet Miers.  Miers was, in political terms, a pure Bush creation; she had no political experience other than her work for George W. Bush.  By contrast, Kagan worked (briefly) for the Senate Judiciary Committee; for the Clinton White House; and, of course, for the Obama White House (see here for details).  In other words, Kagan has behaved exactly as one would expect a committed liberal to behave.  That's not a blank slate; that's action which reveals her politics.  Liberals who support her may not have extensive writings on which to judge her, but they do have her political actions.  Conservatives, with Miers, had no similar record to consider. 

(Update: See Jonathan Chait on the same point today).

Next is the trust question.  Conservatives in the case of Harriet Miers really did have to rely on George W. Bush's judgment.  Liberals, with Kagan, have a far wider group of endorsements to use to judge her as a nominee: not just Obama, but also Bill Clinton, Joe Biden, and the people who worked with her when she worked for those pols.  That's a far different situation.  Any one pol might make an idiosyncratic choice, but Kagan won the support not of one president, but of the liberal establishment.

And, on that trust question, there's a reason that conservatives didn't trust George W. Bush: he had a record of misleading them.  By the time Miers was nominated, Bush had already misled conservatives in Congress about the cost of his Medicare expansion, and had already been proven wrong about so-called weapons of mass destruction in Iraq.  These were not just cases in which conservatives disagreed with Bush (in fact, many of them were enthusiastic supporters of war in Iraq); they were cases in which the Bush administration turned out to be saying things that were not true.  I don't think any similar examples exist for Barack Obama to date.  It is true that some liberals have opposed some of his policy choices, and it is true that some liberals have a deep mistrust of Obama's Chief of Staff, but I don't think there's anything in particular that gives liberals good reason to think that the president might be trying to put one over on them.   It's probably worth mentioning as well that George W. Bush was neither a lawyer nor an apparent expert in constitutional issues, whereas those who have hired Kagan -- Biden, Clinton, and Obama -- are all lawyers, with strong qualifications for being able to judge legal arguments and to assess a nominee. 

(I should add that opposition among conservatives to Miers wasn't just on the basis that she was ideologically unreliable; conservatives also believed she was not well qualified for the position.  I don't think that was a controlling factor, but it may well have been a contributing one.  Presumably, no one has similar qualms about Kagan).

The bottom line here is that Greenwald is conflating two very different types of party loyalty.  It's one thing for a president to nominate someone unknown to the wider political world and asking everyone to simply trust him.  It's a completely different phenomenon for people to support a nominee with Kagan's background and endorsements, and to consider each of those endorsements evidence on her behalf.  Yes, of course, she could have been fooling everyone...but that's just as true, it seems to me, of speeches, law review articles, and even lower court opinions.  You don't get to know what a nominee "really" thinks.  Her writings are only hints, just as the support of those who she's worked with, and her behavior, are only hints. 

I'll add some qualifiers here.  Obviously, there's a big difference between supporting a nominee and believing she was the best possible nominee.  As I've said, I think that much of the parsing in these situations amounts to people kidding themselves over tea leaves, but then again Supreme Court nominations are legitimately thought of as very important, and it's understandable that people will speculate about which potential nominee is the best.  Second, it is of course a plausible position to simply be far to the left of where Obama, Clinton, and Biden are on constitutional issues.  Plausible, but lonely -- one who is in that position should realize that his or her ideal nominee would have little chance of being selected or confirmed.

But to say that the Kagan nomination is in any way similar to the Harriet Miers nomination is garbage, and to say that liberals who take the endorsements of the Barack Obama, Bill Clinton, Joe Biden, and other party leaders as strong evidence on her behalf are the "pure embodiment of mindless tribalism and authoritarianism" is garbage, too.

(Updated to add Chait link above).


  1. You write, "And, on that trust question, there's a reason that conservatives didn't trust George W. Bush: he had a record of misleading them."

    True, and I think a pretty good argument could be made regarding the President, Obama, misleading liberals.

    He could have done better.

  2. Well, and I think that the main issue on which Left Blogovia disagrees with this pick is the realm of national security and executive leeway. And they have been disagreeing with Barack Obama on those issues since well before the election. This is one of those cases where the guy who wins the election gets to make the pick, and those of us further to the left live with it. On the other hand, I don't think it's all that lonely to the left of Barack Obama on national security issues. I would guess that Our Only President is around the middle of the Party there, which leaves a lot of room on either side.

    I'll go back to the distinction between Left Blogovia as analysts and as advocates; as analysts, it's clearly wrong to describe Elena Kagan as the liberal Harriet Miers. As advocates, less so. Part of the point of advocacy is to make overblown statements to make your own positions clear. I think that one of the distinctions is that a lot of Right Blogovia (and more importantly Right Media) were always clear that their role as advocates trumped their role as analysts. Left Blogovia, less so, and Left Media much much less so.


  3. A judge who is not a conservative ideologue will rule the way "liberals" like almost all the time, if not all the time. Kagan is of course not a conservative ideologue, and is in fact pretty darn liberal. The conservative wing of the SC is made up of ideologues - they explicitly believe that the SC has been on the wrong track ever since the Court reversed the "Lochner" cases decided early in FDR's term, allowing the New Deal to go ahead. Almost all non-ideologues (liberals and moderates) agree that the Lochner Court was wrong, and that subsequent cases affirming the fed's right to regulate interstate commerce through wage and hour legislation and all the other New Deal innovations was right, just as all non-ideologues (liberal and moderate) believe that Brown v. Board was right to overrule separate but equal in Plessy.

    Conservatives did not like Brown, of course, and have been hot and bothered about most of what the Court's done since then - even in the last few decades when Republican appointees dominated. They are like global warming denialists - just as the denialists stand outside the scientific consensus with ideology-based views, so do the conservatives on the Court stand outside most of the Court's jurisprudence, criticizing it from an ideological, rather than a legal standpoint. They didn't like Brown because it desegregated schools, they didn't like "Murray" because it invalidated school prayer, they didn't like Miranda ... - I could continue, but you get the point by now. Since they didn't like the result, they claimed that liberals were result-oriented - making liberal policy from the bench. In fact, it was and is conservatives who are outside the mainstream and "result-oriented" - "originalism" and "the Constitution in Exile" and other conservative "theories" are about trying to mold jurisprudence to get results conservatives like. (When Brown was decided, neither originalism nor CIE were alternative theories - they developed much later in order to find a way to justify reaching a different result - in other words, it's clearly a case of conservatives coming up with a post-hoc reason to criticize rulings they don't like, rather than applying an existing theory they had at the time to question the results.)

    This is the reason some Republican appointees wind up disappointing ideological conservatives - since Souter, Stevens, Kennedy and O'Connor (and Nixon-appointed moderates before them) viewed cases without sufficient ideological rigidity, they naturally ruled in a non-ideological way in some cases. (All of these folks were appointed by presidents who knew they were appointing non-ideologues, which they mainly did to get the nominees through a Dem Senate.)

    To go back to the global warming analogy - if you want to hire a scientist who will more or less accept the scientific consensus on global warming, you don't need to ask her if she believes in global warming, you merely have to assure yourself that she's a good scientist. Good scientists accept the scientific consensus - more accurately, accept the scientific method, which yields results that will tend to strengthen the consensus. (And when results weaken the consensus, they still drive science forward, which is what we want science to do.)

    A lawyer with mainstream legal opinions will inherently be far "more liberal" than the Roberts' wing, and even Kennedy. A clearly "liberal" lawyer like Kagan, will vote with the liberals on every contentious case. And when or if she doesn't, it will because she's trying to reach the correct result rather than an ideologically pure one. I have no problem with that. In fact, I'd have a problem if she allowed ideology to mold her opinions, even if her ideology were exactly the same as mine (and it probably is pretty close).

  4. Jon,
    I wouldn't give the "not qualified" thing just a little throw-away parenthetical. You and I both know somebody who used to call himself a Republican until Miers. The problem is that there was no evidence that Miers could have written good, conservative law. Her career seems to have been mostly political and mostly in boardrooms, rather than at places where she might be debating the constitutional issues of the day. A lot of conservatives opposed her because this was THEIR pick, and they'd be damned if they got someone who wouldn't be a good justice as well as agree with them.

    There was a story that I vaguely remember, but at this point, I'm almost certainly butchering it. As I recall, Eisenhower was forming a list for one of his nominations, and he put a bunch of Republicans on the list, and then added one prominent liberal jurist to the list because he had heard such good things. When he called in the ranking Republican on the committee to talk about the list, he handed it to him, and this Republican gave it right back to Ike and said "Mr. President, you gave me the list upside-down." (UNDERSTAND: there's a VERY good chance I've misremembered this anecdote) Anyway, despite all their naked political-ness, we have to remember that just occasionally, people are also trying to do good. And, I've never read any accounts that suggested Miers was anything but totally unqualified. For example, Miers had her questionnaire sent back for being "inadequate, insufficient, and insulting" by BOTH sides of the aisle, the only time in history that has happened.

    Yes, I was opposed to Miers ideologically. But there's a reason Roberts won fairly easily and Miers was dead from the word go: one of them was eminently qualified, and one wasn't.

  5. Matt,

    Fair point. I guess my feeling is that as a response to Greenwald, the qualified thing is mostly a parenthetical, since he's really concerned with ideological and issue predictability. But in the larger sense, you're certainly correct.


    I strongly disagree that there's anything that Obama has done that's in any way comparable to the Medicare & Iraq cases under Bush. It's one thing to disagree on policy, or even to modify campaign promises to adjust (wisely or not) to perceived political context; it's a totally different thing to sell a policy to your colleagues on the basis of rigged data.

  6. Mr. Bernstein,

    Bush ran in 2000 pledging substantial health care benefits with regard to drug coverage for seniors, see the link. It is really impossible to honestly claim that Bush mislead any one in this regard. It was a major issue in the 2000 election, it was a major part of his "compasionate conserative" persona.

    At the signing of the bill Bush said, "Our government is finally bringing prescription drug coverage to the seniors of America. With this law, we're giving older Americans better choices and more control over their health care, so they can receive the modern medical care they deserve." He was fulfilling his pledge during the campaign.

    I think Bush mislead on many issues but not with regard to Medicare Part D.

  7. Bob,

    Sorry, I wasn't clear. It's not Bush's support for Medicare reform that destroyed their trust in him. It was the phony budget estimates that the administration supplied to Congress. Here's the story:

    The key thing here is that the votes Bush was targeting by hiding the true cost of the bill were GOP votes. In my opinion, that episode cost him even more than Iraq in terms of trust, but I'm confident that both combined were enough to make it certain that Congressional Republicans would not trust him again.

    (Congressional Democrats stopped trusting him after they believed that he double-crossed them on NCLB by not fully funding it. They also thought he misbehaved in the 2002 midterm elections).

  8. Second point.

    It is really impossible to quantify to what degree Obama has adjusted or fine-tuned his campaign rhetoric to fit the needs of everyday policy once in office. But I feel strongly that he has substantially changed his tune with regard to military commissions vs federal court trials for accused terrorists. In my book he has caved badly on this issue and as you know just yesterday AG Holder announced the administrations willingness to carve-out more exceptions to Fifth Amendment rights. While you may not find such fine-tuning or outright change in policy as troublesome as Bush era maleficence I do. I hoped for real change with the election of Obama.

    Writing in the Washington Independent, link below, Spencer Ackerman makes the point, "Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions."

    While you are not aggrieved to the extant I am about Obama's "misleading" we will just have to acknowledge that some misleading has occurred.

  9. Bob,

    Yes, some rank-and-file supporters are no doubt disappointed in Obama overall, ideologically, and/or on specific issue positions. But that's not what I'm talking about. This is about the president's reputation among Washingtonians. They may or may not care if Obama flips on some issues, but they care a lot if they can't trust him at the level I'm talking about with Bush -- that he told them purportedly factual information which either he knew was false, or he should have known was false, or at the very least he had no real reason to have confidence in.

    As far as I'm aware, Obama hasn't been perceived as doing anything like that, to either Dems or Republicans, yet.

  10. I consider myself a fan of Greenwald's writings (his book Great American Hypocrites is a must read), but there are times when he is off his rocker, and this is one of them.

    The irony is that he has spoken eloquently against the kind of lazy political equivalence you see in mainstream journalism today, where people are always claiming to find a liberal version of something on the right, and vice versa. The right and left rarely stack up that neatly against each other, and this type of "analysis" is superstitious as well as oversimplistic. Now Greenwald is engaging in this hackery himself. Very disappointing.

  11. Sorry to fall into the obvious cliche here, but treachery, like beauty, is in the eye of the beholder.

    Asserting that Obam retains the trust of "Wsahingtonians" is damning with faint praise. I'm only partially kidding.


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