Tuesday, May 11, 2010

Trust Issues

You know, I could insert some comment here like "Gee! Sure has been a while! I should keep on top of this" and other such nonsense, but I've made that comment in the past and it doesn't work. So I'm just going to jump back on, post like mad for the next few days, and then disappear again for months, because that's just how I roll.

At any rate, I just have a short rant about this whole Elena Kagan business.

Now, I'm not a constitutional scholar. So as far as those intricacies play out, I really have no say. What I'm getting a bit frustrated at, however, is the hostile reaction of what appears to be valid criticism of Kagan* from some of her (actually, more likely Obama's) defenders:

John Cole:

And I reject flat out that deferring to the judgment of your Senators and the President is simply “cult like” behavior. WTF did we elect these people to do? Should we just have referendums on Supreme Court nominees now? How is someone like me, with no legal training, supposed to make the kind of informed decision on Kagan’s legal logic? I have a job and a yard to mow and pets to take care of and bills to pay- I don’t have time for a direct democracy. Obviously, that does not mean just greenlighting whatever your elected officials do, but the idea that saying “Hrmm- Sanders, Obama, Feingold, Sherrod Brown, Leahy, and a lot of others whose opinions I respect and who know a helluva lot more than me about this all think she is a good fit” is cult-like behavior is just pure bullshit. That is how our system is supposed to work.


I guess the argument against Kagan that I truly don’t understand is the “she’s a blank slate” or she’s a “stealth nominee”. If Barack Obama had selected her the same way John McCain plucked Sarah Palin from well-deserved obscurity I could understand people’s fears. But I willing to bet that Obama has spent more than a modicum of time with her discussing court decisions, legal philosophy, and such and such and he has a pretty good idea what floats her boat. ( I can’t imagine that he asked for her opinion on, say, Connick v Thompson and she refused because “it would be inappropriate to discuss a pending case.”) The only defense for the empty slate attack is a complete lack of faith in Obama; that he is, in fact, a Conservative Republican. And that is just nuts.

Greenwald noted earlier that the "Obama likes and trusts Kagan, and I like and trust Obama, therefore I like and trust Kagan" faith argument was going to be prevalent in this selection process. Which makes sense, being that as of now, there is very little else to judge her on. It's not lost on the administration that Obama's popularity can be a major motivating force for liberals, so to position Kagan as a cipher on which to project Obama's image isn't necessarily a poorly-thought out plan.

And in some sense, I do trust it. Obama isn't an idiot. Being that he's long been seen by those on the far right as an illegitimate usurper of the throne, they will stop at nothing to challenge every piece of legislation advanced by his administration all the way up to the Supreme Court. Odds are, he's not going to put someone on the court that will turn against the policies pushed forth during his administration. He's going to protect what he sees as the more positive aspects of his own legacy.

So no, I'm not worried that Obama is nominating some conservative judge. I trust that he would nominate someone whose views align closely with his. I think my concern is that he's not nominating a conservative enough (in the classical sense) judge. If we set aside for a moment that Kagan's record, from what can be gleaned by the little amount that can actually be examined, is not great for civil liberties when it comes to executive power (there has been much written on this elsewhere, so I won't go into detail on that), and just go on trust, the bottom line is that no, I don't trust Kagan on issues like detainee rights, limitless executive authority, military tribunals, state secrets, and the multitude of other issues raised over the past decade in regards to counterterrorism**. I don't just Kagan on these issues because I don't trust Obama on these issues.

So you'll have to forgive me if I, someone that voted in Obama mostly on the hopes he would reverse some of the worst abuses of executive authority put into place by the former Bush administration (as promised), have little faith to extend to him at this point. And you'll also have to forgive me if I, someone who does the "hold your nose and vote for the lesser of the two evils" strategy in the booth because of the lasting effect of Supreme Court appointments, don't really feel like shutting the fuck up and letting this one pass. That I'm expected to in the name of party unity seems, well, just nuts.

* Not that there hasn't been absurdly stupid criticism of Kagan that deserves nothing more then mockery. My favorites thus far have been the keen observation that she didn't drive until she was in her 20s and the lament that what we really need right now to balance the current SCOTUS gynocracy is more men on the court.

** Radley Balko sends up a red flag that Kagan might not be so great when it comes to criminal justice issues, either. But let's not worry our dear little heads over such trivial issues like the increasing legalization of the police state in this country.

No comments: