Behind the Gushing: Kagan in Context
Today, a few hours after I wrote the piece below, many Senate Democrats lauded the new Supreme Court nominee. Majority Leader Harry Reid predicted that Elena Kagan “will demonstrate that her primary allegiance is to fairness, justice and the rule of law, not ideology.” Some members of the Judiciary Committee — including Dick Durbin, Al Franken, Ben Cardin and Chuck Schumer — were positively gushy.
And then there was the upbeat response from a leading Republican member of the committee, Lindsey Graham, who offered this sunny comment: “I have been generally pleased with her job performance as solicitor general, particularly regarding legal issues related to the war on terror.”
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If President Obama has his way, Elena Kagan will replace John Paul Stevens — and the Supreme Court will move rightward. The nomination is very disturbing, especially because it’s part of a pattern.
The White House is in the grip of conventional centrist wisdom. Grim results stretch from Afghanistan to the Gulf of Mexico to communities across the USA.
“It turns out, by the way, that oil rigs today generally don’t cause spills,” President Obama said in support of offshore oil drilling, less than three weeks before the April 20 blowout in the Gulf. “They are technologically very advanced.”
On numerous policy fronts, such conformity to a centrist baseline has smothered hopes for moving this country in a progressive direction. Now, the president has taken a step that jeopardizes civil liberties and other basic constitutional principles.
“During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration’s bogus category of ‘enemy combatant,’ whose implementation has been a war crime in its own right,” University of Illinois law professor Francis Boyle noted last month. “Now, in her current job as U.S. Solicitor General, Kagan is quarterbacking the continuation of the Bush administration’s illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court.”
Boyle added: “Kagan has said ‘I love the Federalist Society.’ This is a right-wing group; almost all of the Bush administration lawyers responsible for its war and torture memos are members of the Federalist Society.”
The departing Justice Stevens was a defender of civil liberties. Unless the Senate refuses to approve Kagan for the Supreme Court, the nation’s top court is very likely to become more hostile to civil liberties and less inclined to put limits on presidential power.
Here is yet another clear indication that progressives must mobilize to challenge the White House on matters of principle. Otherwise, history will judge us harshly — and it should.
For more than 15 months, evidence has mounted that President Obama routinely combines progressive rhetoric with contrary actions. As one bad decision after another has emanated from the Oval Office, some progressives have favored denial — even though, if the name “Bush” or “McCain” had been attached to the same presidential policies, the same progressives would have been screaming bloody murder.
But enabling bad policies, with silent acquiescence or anemic dissent, encourages more of them. At this point, progressive groups and individuals who pretend that Obama’s policies merely need a few tweaks, or just suffer from a few anomalous deficiencies, are whistling past a political graveyard.
At the same time, with less than six months to go before Election Day, there are very real prospects of a big Republican victory that could shift majority control of Congress. Progressives have a huge stake in averting a GOP takeover on Capitol Hill.
The corporate-military centrism of the Obama administration has demoralized and demobilized the Democratic Party’s largely progressive base — the same base that swept Nancy Pelosi into the House Speaker’s office and then Barack Obama into the White House. National polls now show Democrats to be much less enthusiastic about voting in November than their Republican counterparts.
The conventional political wisdom (about as accurate as the claim that “oil rigs today generally don’t cause spills”) is that when a Democratic president moves rightward, his party gains strength against Republicans. But Democrats reaped the whirlwind of that pseudo-logic in 1994 — after President Clinton shafted much of the Democratic base by pushing through the corporate NAFTA trade pact against the wishes of labor, environmental and human-rights constituencies. That’s how Newt Gingrich and other right-wing zealots got to run Congress starting in January 1995.
For progressives, giving the Obama administration one benefit of the doubt after another has not prevented matters from getting worse.
At the moment, U.S. troop levels are nearing 100,000 in Afghanistan.
Massive quantities of oil are belching into the Gulf of Mexico.
The White House has signaled de facto acceptance of a high unemployment rate for several more years, while offering weak GOP-lite countermeasures like tax breaks for businesses.
Nuclear power subsidies are getting powerful support from both ends of Pennsylvania Avenue, while meaningful action against global warming is nowhere in sight.
The Justice Department continues to backtrack on civil liberties.
And now, if the president’s nomination of Elena Kagan is successful, the result will move the Supreme Court to the right.
Progressives should fight the Kagan nomination.