Black Robes and No White Hats

The second opportunity to nominate an associate Justice of the Supreme Court has come for President Obama, and it seems he has played the card dealt in a manner true to his form as a center-right, pro-corporate shill who at every turn communicates populism while really keeping the great unwashed progressive hordes who believed his mantra of transformational change at bay, just outside the halls of power.

How does this seeming indictment of the Obama way relate to Solicitor-General Kagan? In my view, a number of Ms. Kagan’s positions on free speech as evidenced in writings that have come to light in the days since her nomination tend to make one think there’s more of a chance that she will be an intellectual buddy of Antonin Scalia rather than a liberal foil to Justice Anthony Kennedy. According to a 1996 article, Ms. Kagan criticized a progressive tendency among public officials who have tried by various means to create a more balanced and open marketplace of ideas, questioning “laws ‘equalizing’ the speech market.” Note: This quoted material comes from Adam Liptak of the New York Times, article from 05/14/10. The cases she reviewed in the papers mentioned here dealt with placing limits on corporations when it comes to campaign finance. Since corporations are, at their essence, an organized body that acts as an individual (one with greater resources and reach to be sure, but an individual with particular and self-interested motivations) it seems rather disingenuous to say that since individuals gather wealth in part from protections given by the government, the same holds true for a corporation. This is the essence of Ms. Kagan’s position when it comes to the Citizen’s United case, the campaign-finance case President Obama went out of his way to rile up John Roberts by mentioning during the State of Union speech.

This, along with a published opinion on a flag-burning case that differs from that of the justice she seeks to replace, John Paul Stevens, makes the observer in me wonder what is the point of nominating someone like Kagan rather than a stronger advocate of progressive positions that would leaven the influence of the stony bloc of conservatives on the Court led by Scalia and Roberts with Alitto, Thomas and Kennedy bringing up the rear? I think it has to more to do with today’s political climate and a very careful eye towards the eventual legacy of the Obama Administration, rather than with any concern for the shape and direction of American democracy as it is interpreted and enforced by our Supreme Court. The legacy Mr. Obama seems to be reaching for in no small part depends on being seen as effective at all costs. Rather than nominate a firebrand liberal who may not get confirmed, he would go with a sure bet; a like-minded Harvard Law school wonk that has done enough bridge-building with conservatives to seem non-threatening, and in fact, someone with whom they can play ball. Once all the public shouting is over and done with, Ms. Kagan looks to me to be the kind of Justice who will by virtue of her closeness to the club and respect for the way the game has always been played won’t do any real game-changing and leave that to the bozos who have to run for office every four or six years.

End. Rev1 16 May 2010, 6.17 p.m., Brooklyn
© David Mark Speer