Tabula Non Rasa
Glenn Greenwald has, somewhat provocatively, compared President Obama’s nomination of Elena Kagan to the Supreme Court to George W. Bush’s short-lived nomination of Harriet Miers. The idea is that Kagan hasn’t sufficiently proven that she has reliably liberal views and could wind up pulling the Court to the right. Jonathan Bernstein demurs:
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…. 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.
Last year I read a long article of Kagan’s about presidential control of administrative agencies.1 My general take was that she had moderately pro-executive views which reflected the lived experience of someone who had worked in a contemporary Democratic administration. I remember that I was not entirely satisfied with her account, but also that there was not really anything that I found specifically objectionable. But certainly her scholarship was top-notch; and whatever the alleged paucity of her published work, it’s clear that, academically and intellectually, she’s no slouch.
So I agree with Bernstein: Kagan is not a blank slate. Guarded, canny, and at times maybe even opaque. But certainly not blank.
- The article was “Presidential Administration,” 114 Harv. L. Rev. 2245 (2001). [↩]
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3 Responses to “Tabula Non Rasa”
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Hey, I’ve been away, but I’m back! Like the green background (that’s new, right?)
I’m glad we have people like GG who are willing to take strong stances… it forces other people to really clarify their thinking. But I also think he has a tendency to miss the point sometimes. Having read up on the justices before the pick I was hoping for Diane Wood, but I think Kagan is absolutely credible and is CERTAINLY no Harriet Miers. (Plus she’s young, and so will likely serve a long time… which is unfortunately a very important consideration)
Will she ‘pull the court to the right?’ Well, I’m pretty sure she won’t be as liberal as Stevens, so in a sense you could say so. But for the time being really all that matters is ‘is she to the left of Kennedy?’ (of course people can be more liberal or conservative on particular issues, but you get my point)
In the long term I don’t think we so much need justices that are more liberal. We need more justices that are at least somewhat liberal. Which is why just keeping the Presidency in the hands of Democrats is probably the most important thing we can do to influence the court (more important than pressuring said Democrat to appoint whoever we like the best)
Well, welcome back from wherever you’ve been. It’s been kinda lonely around here!
As usual, I thoroughly agree with everything in your comment.
Except for the part about the green background. I’ll have you know, sir, Organon has always had a green background and will always have a green background…until such time as I decide to change it.
The rounded corners of the three columns are new, though. And the subtitle changes every month or two.
i coulda sworn it was all shades of gray before… guess the blog just seems greener on the other side, hehe