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Elena Kagan nominated, blogger blog

I should probably note down here in this Tohu Bohu my response to the nomination of Solicitor General Elena Kagan to the Supreme Court. I’m not thrilled. I don’t find it an exciting nomination. I am convinced that she is, pretty much, a moderate Democrat: I suspect she will almost always vote in line with our Party. To be more accurate, I think that her votes will almost always be compatible with what is now the mainstream of our Party. I am hoping that our Party will move substantially to the left over the next thirty years, and that therefore the Democratic-mainstream-from-2040 will look back on her as a disappointment.

Specifically, I think she lines up with Our Only President on matters of Executive Power, National Security, and Secrecy. I don’t. But then, I didn’t win election to the Presidency and he did, so he gets to pick and I don’t. That’s how it works. Again, I’m kind of hoping that in thirty years, our Party will look back on our support of the (so-called) Patriot Act, of the torture of terror suspects, of secret and extraordinary rendition, of widespread domestic spying, and of the whole apparatus of the War on Terror with something not unlike the horror we feel on looking back on our support of Jim Crow. I’ll be, in my lazy bloggish way, working toward that. But we’re not there now.

Further, and I know this is small comfort, I’m not entirely convinced that Solicitor General Kagan will support much further statism than we saw under Our Previous President and his secretive cabal of crooks and incompetents. Which was bad, don’t get me wrong, and the idea of supporting a nominee who draws the line there leaves a bad taste in my mouth. But better such a nominee than one who draws it, well, wherever the Executive asks her to at any point. And, of course, that may turn out to be the case—any new nominee is always a risk. So anyone who is opposing this nomination on the grounds that we cannot afford that particular risk at this point: go to it and good luck to you. But I think there’s reason to hope, even on that front. And, of course, on almost any other front, I expect her to vote right along with Justice Sotomayor.

And one more thing: I am pleased that this will crack the appellate-judge hold. I wound up ranting about this to my Best Reader: what I think we are really going to need on the Supreme Court over the next three decades is somebody who has experience legislating, somebody with years in committees and subcommittees and caucuses. I’m thinking some State Assembly Speaker, if we can find one not hopelessly corrupt. Because I’m thinking that over the next thirty years or so, we are going to have a bunch of cases come up involving climate change legislation, state and local, takings and regulations and conflicts and property rights and—here’s what I’m getting at—legislation that is written specifically to get around Constitutional limitations on legislative power. And I do not believe that anyone currently on the Court knows what it’s like to draft those laws. That seems like a drawback to me.

Solicitor General Kagan has worked for the Senate Judiciary Committee, which may turn out to be useful, but that’s not the key thing. To my mind the key thing is that it isn’t, practically, possible right now to nominate and get confirmed anyone who has held elective office with one Party or the other. Yes, there was a lot of talk about nominating Mario Cuomo at one point, or Bruce Babbitt at one point, or John Ashcroft at one point. But that was talk, which is proverbially proverbial. Right? If Elena Kagan is confirmed, and is (as she will be) a perfectly reasonable Justice, infuriating some people and pleasing others and so on but doing so within the usual bounds, that does open things up a bit.

Oh, and when we start listing our questions for the hearings (which will probably be in late July, I’m told), can we ask her to comment on Pirke Avot chapter four, verses nine and ten? Does anyone know where she goes to shul?

Tolerabimus quod tolerare debemus,