I have no idea what kind of Justice Elena Kagan is going to be, and almost no one else does either. She might be a terrific progressive or she might move the Court to the right, as some fear. My problem with her isn't her stated positions, as she doesn't have very many.
My problem with her is my problem with Obama. Cheney and Bush moved the ball 80 yards down-field, whether that was on executive power, warrantless wiretapping, pre-emptive wars or just about any other issue you can think of. And Obama's bold and brilliant response is to move the ball 10 yards in the opposite direction. Not good enough. Not remotely good enough.
His every action drips of conciliation, compromise, gradualism and incrementalism. The conservatives take miles of ideologically territory and convert it into the status quo. Then Obama brags about converting inches back. This isn't change we can believe in. This is pocket change.
So, when conservatives yelled at him about trying Gitmo detainees in civilian courts, his instinct was to back down. When they yelled at him for giving detainees Miranda rights, he is now on the verge of backing down. When they yelled at him about foreign wars, he escalated them. When they yelled at him about the $50 billion "bailout" fund in the financial reform bill, he asked to take it out. When they yelled at him about offshore oil drilling, he gave them more. How did that turn out?
Did you know that after Joe Wilson yelled out "You lie!" on the issue of how immigrants would be treated in the healthcare bill, they quietly gave into him and changed that provision? Is there anything that this guy can't get bullied on? Well, of course, there is. Everything from the left.
So, that brings us to Elena Kagan. Bush picked arguably the two most conservative judges in the country to fill his Supreme Court vacancies. He easily shoved it down the throat of the Democrats. What has been Obama's response - let me pick a centrist!
He can't help himself. He loves establishment players. Look at nearly all of his appointments. Rahm Emanuel, Tim Geithner, Ben Bernanke. These are the pillars of the establishment. What kind of change is this? He nominated for the head of the Fed the same exact guy who helped destroy our economy for George W. Bush. He can't help himself. He is a politician through and through, and he desperately wants the approval of those around him. And those around him now are the power players in Washington.
So, we get the blank slate of Elena Kagan, with almost no record to speak of, except her affinity for executive power. Joy. Could she turn into a lion of progressivism? Sure. But why do we have to hope against hope on that? Why can't we get a progressive Justice if we elected a progressive president? Because the ugly truth is that we didn't elect a progressive president.
Obama (and Rahm Emanuel) are going to love it if progressives attack Kagan. They will brandish that as a signal that they are soooo centrist. They will crow to their Washington reporter friends that they are being attacked from the left and brag about how much credibility that gives them. And when they win this nomination (non)fight, they will declare victory again, as if they accomplished some major objective. No one loves beating up progressives and winning easy battles in DC more than this administration.
My guess is that at some future date this article will be misinterpreted to say that I argued against Elena Kagan. Except for executive power (where I am as progressive as anyone in the country), I am a judicial moderate. Kagan might wind up being exactly my kind of justice. And so far, Sonia Sotomayor has been great - and Obama picked her (which some will argue is evidence to "trust" him again). My point isn't that Kagan is terrible or can't do the job. My point isn't that Obama secretly wants to pick a conservative (or a progressive, as his defenders would claim). My point is that Obama has no intention of burning up political capital (according to his perception) by publicly standing up and fighting for for his own so-called side and will defer to the center or right-wing given any opportunity to do so. And this is another example of that.
Elena Kagan - safe, no record, never challenged power in any meaningful way, never stood up for progressive ideology, beloved by the establishment in Washington - the perfect Obama candidate. I'm tired of it. The ball is down against our own goal line and the guy thinks he just scored a touchdown.
He is never going to throw the ball down the field. If you like two yard pick-ups by a running-back going straight up the middle, you'll love Obama. It's the Eddie George presidency. What he doesn't seem to get is that the other side is eventually going to get the ball back and then it won't seem like a major accomplishment that we went from our own two-yard line to our own twelve-yard line. It'll be viewed as a tremendous disappointment.
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