text:
I’m Tired

Maybe it is because I am still fighting this damned head cold, which has now morphed into a full fledged cold, but I am just tired of all the acrimony. Every political event in this country is immediately followed by just heaping loads of bullshit. Within minutes of the Kagan announcement yesterday, we learned, depending on the source, that Kagan was the worst most unqualified choice ever or the best, most smartest person in the world. There appears to be no middle ground whatsoever.

I don’t want to sound like David Broder pining for days that never existed, but wading through all the crap is just exhausting. My take on Kagan is that she is obviously extremely well-educated and respected by her peers, is obviously qualified and by no means Harriet Miers, but she does not have the thick kind of paper trail that would assure folks on the left where she stands. I trust that over the next few months, the people who actually spend time interviewing her will get to know her and we will learn more in the hearings. If she bombs her interviews like Harriet, then she probably shouldn’t be confirmed. If she does well in them, and enough Democrats and some Republicans choose to support her, well, then that is that.

I just am sick and tired of battles to the death, with the battle lines drawn instantly and with no wavering. It is no wonder so many people just pay no attention to politics whatsoever.

*** Update ***

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. And where we have tried real direct Democracy, in places like California, where it takes a referendum to do anything- well you all know what a dysfunctional disaster that place is.

If something comes up and if someone can make a persuasive case she should not be the next Justice, I’ll listen. She doesn’t deserve the seat just because Obama nominated her. But I’m not going to spend the next few months chasing down every single person’s pet peeve or biting on everyone’s distorted view based on a selective quotation of one thirty second speech and then pitching a fit that Kagan is the worst person in the world.

335 replies
1. 1
Phyllis says:

2. 2
Breezeblock says:

Our electoral/political system is broken. Possibly irretrievably.

There’s always booze, sweet sweet booze…

3. 3
Rosalita says:

MSM media sources these days are living for web hits and teevee ratings — sensationalism and extreme views get the attention and those of us who actually care wind up beating our heads on desk in frustration at the lack of coherent reporting. They are putting themselves out of business.

4. 4
Ash Can says:

This has been your daily installment of common sense by your blog proprietor. We now return you to our regularly-scheduled mayhem.

5. 5
slashdotcom says:

But it’s too early in the morning for booze!

Or is it?

6. 6
zzyzx says:

I don’t see any way of stopping the insanity short of abolishing political parties. Group identity is a bad thing; it causes people to defend decisions based on whether or not they help the group. It’s the same reason why there’s much more violence around soccer than other sports. Organized fan groups are more prone to clash than standalone fans.

7. 7
Nimm says:

That this post even needs to be written is sad.

The whole phenomenon is why I’m reading less and less commentary about politics, rather than just the facts. Listening to the left (of which I’m proudly a member, for the record), the right, and the media “referees,” the debates are all the same, and just get repeated ad nauseum.

8. 8
PurpleGirl says:

One name — Robert Bork. He had a paper trail a mile wide and miles long. The Democrats of the time were able to use that paper trail to keep him off the SCOTUS. Since then people have tried to minimize their paper trails. If it’s true she’s wanted to be on the Court for a long time, her lack of a paper trail is her version of trying to avoid what befell Bork (i.e., giving the opposition written ammunition on which to base their opposition). Of course, that lack of written ideas is itself now a bone of contention. As I remember the nomination of Roberts and Alito, they had paper trails but the Democrats ignored them for the most part.

Yes, it is tiring and depressing to watch what the nomination process has become.

9. 9
Ming says:

Ayup. That’s why snark is so important. Otherwise we couldn’t bear it at all.

10. 10
MikeJ says:

Here’s the stupid I heard this morning that made me want to pound somebody’s head against a desk: On BBC, they were talking about the possibility of a LibLab deal. They insisted that even though the LibDems have more in common with Labour, and all of their members would rather do a deal with Labour than the tories, “the voters” wouldn’t like it.

Since Labour voters would probably prefer it, and LibDem voters probably prefer it, who are these “voters” who will be outraged? The Conservatives, who got fewer seats than they need and don’t appear to want to make a deal.

11. 11
MattF says:

Battle fatigue. Try reading about the Maine Republican Party platform. Maine was a place where, not so long ago, one encountered liberal Republicans.

12. 12
satby says:

@slashdotcom: Somewhere in the world it’s cocktail hour.

But John is right, I’m a die hard political junkie, and even I hardly pay attention any more. Action-reaction; it’s as predictable as gravity. And I wonder sometimes if that’s part of the purpose; the more people become disengaged, the easier it is to control the message and swing elections.

Sad to say, it seems to be working very well.

13. 13

If anyone’s gonna say “I’m tired,” it should be Madeline Kahn.

14. 14
Jim, Foolish Literalist says:

Personally, I don’t think the opposition to Kagan (at least on the left– the opposition on the right doesn’t deserve to be addressed) is that significant, just the usual whiny suspects. She wasn’t my first choice, there are a couple of issues that make me nervous/irritated, but the overarching fact of politics, the one that colors the national mood and thus Obama’s every decision: The economy sucks six months before a national election. That’s why, in answer to a commenter I couldn’t be bother to register and answer on another site, Obama isn’t picking a fight and if he loses just starting over. I would’ve preferred Diane Wood, no idea if she was Obama’s first choice, but even if that were true, maybe Obama feels that this isn’t the time to pick a fight about abortion. Old white people are gonna be at the polls in November (including me). I hope the pattern shifts this year, but you can’t honestly blame Obama for looking at the situation as it is, not as it ‘should’ be.

15. 15
slag says:

@Phyllis: Seconded.

I don’t know what the solution is, but I like to think there is one.

@zzyzx: Our group identities definitely don’t seem to be based around political parties. Our group identities seem to be based around the word “Bot”. Personally, I’m just glad they’re not based around the word “Droid”, because if they were, we’d be paying George Lucas some serious royalties right now.

16. 16
Crashman says:

@slashdotcom: Start pouring. It’s five o’ clock PM somewhere in the world.

17. 17

but she does not have the thick kind of paper trail that would assure folks on the left where she stands.

You know, the more I read of the criticism of Kagan from the left, the less convinced I am this actually has anything to do with it. I’m sure there are some who are smply worried they don’t know what she thinks, but with the Campos and Greenwald brigade, it seems much more personal than that.

18. 18
MMonides says:

Eric Alterman (to my surprise) is saying the same thing: welcome to representative democracy folks.

Anyway, I was very amused to see Lessig and Lithwick politely call Greenwald a liar last night on Maddow. She set him up for a rather humiliating fall by lining the two of them up to dissect his analysis one after another.

19. 19
jrg says:

If you’re paid a ton to have an opinion, you’re going to have an opinion. It’s that simple.

We have this problem because our media (and our politicians) are rewarded for pulling dung from their unmentionables and smearing it on a camera or on print.

If people got dinged for factual errors (or if old quotes were dragged out that time proved moronic), there would be a lot less of this going around.

20. 20

@satby:

Read more long-form, big picture, analysis. Stay as far away from activist blogs, cable news, newspaper Op-Eds, etc. as you can.

21. 21
22. 22
tim says:

God, John, just turn off the TV and radio and don’t read blogs all day.

A lot of this perceived over the top viciousness is a result of the 24/7 modern news cycle. The electronic outlets have to fill that time with something, and arguing and fact-less opining take up more time, build more drama for the audience, and cost less than real reporting on real, you know, facts.

So, seriously, get away from the tube. Feed your birds, plant flowers, pet Tunch and Lily; live live in the real world of actualy people and things and sky and grass. Then just check on the news a couple times a day.

Also, it’s good to keep in mind how ugly politics have always been in this country. Read some old political campaign pamphlets from the early days of the colonies, the 19th century, etc. People always fought like cats and dogs; this is really nothing new. I do think it is the incessant feeding of the media beast that makes it seem worse so now than ever before.

Lastly, it helps me to think of it all as entertainment for the most part. Beginning in 2000, I’ve gradually given up the fantasy that I have any power to change the corrupt nature of the U.S. Oligarchy, and have applied my energies to improving the quality of my own life and those of the people affected by me. At least that way I am doing something good and concrete for a definable group of people including myself.

Instead of looking for HOPE and CHANGE from cyphers like BO, people should look to themselves for the same.

23. 23
MikeJ says:

@Brien Jackson: My guess is that they want to see some hippy kissing. It’s hard to view this pick as hippy punching, but there are people who are upset that Obama doesn’t publicly defer to the left, not because they dislike his policies, but because they want to see him publicly defer to the left.

24. 24
Poopyman says:

@low-tech cyclist:
Dammit! I had that one all queued up.

(Shakes fist)

25. 25
tc125231 says:

WTF did we elect these people to do?

Good question. All that uninformed voting comes home to haunt the Republic….

26. 26
slag says:

@tim:

So, seriously, get away from the tube. Feed your birds, plant flowers, pet Tunch and Lily; live live in the real world of actualy people and things and sky and grass. Then just check on the news a couple times a day.

Ummm…you’re illustrating the exact problem he is describing. This is the real world. This shit matters. And people need to pay attention. It’s integral to the whole system. And part of the problem with the system is that not enough people care about it as much as John does.

The solution is not to get him to care less; it’s to get more people to care more. Although how to do that is something of a mystery to me.

27. 27
Zifnab says:

But I’m not going to spend the next few months chasing down every single person’s pet peeve or biting on everyone’s distorted view based on a selective quotation of one thirty second speech and then pitching a fit that Kagan is the worst person in the world.

Cheers to that.

The single biggest complaint I see against Kagan is that she lacks a paper trail. Certainly, there are past lessons to be learned about appointing a SCOTUS blindly. I would rather Kagan not be Obama’s David Souter.

But, at the same time, Souter wasn’t a flaming liberal. He was a traditional conservative that bucked at the radicalization of his old party. If Obama does pick a social moderate, I can’t see that seriously impacting the balance of power on a court currently comprised of four radical wingers, four centrists, and one swinger.

When Kennedy or one of the wingers bite it, I can see some value in pulling the court hard left. But, as it stands, the vast majority of “bad” SCOTUS decisions end in 5-4 rulings. What are the Greenwalds and the Hamphers looking for? Make one of those dissenting 4s a Super Dooper No rather than your regular old No?

28. 28
Anton Sirius says:

In 1974, Madeline Kahn was the sexiest woman on the planet.

29. 29
comrade scott's agenda of rage says:

@tim:

This. Welcome to good ole ‘Murkin democracy. Same vitriol, different media.

Drive up to Pittsburgh. Go to Church Brew Works. Genuflect at the altar of beer, then drink some beer.

30. 30
General Egali Tarian Stuck says:

Can’t improve on this post. But What I try to do is separate the politics from the well worn mechanics of governance. Or, more precisely, it is the guy or gal who gets themselves elected POTUS that has the sole duty and legal right to nominate who they want to fill open slots on the SC.

And then the senate does it’s constitutional duty and holds hearings and has a vote to confirm, or not. I don’t want to hear the whines from the left that we shouldn’t let this play itself out because we all know she will automatically get confirmed once nominated. This is malarkey as Miers proves.

We will get an idea on how Ms Kagan thinks and her mental processes in generally making decisions as well as a broad outline of how she sees the world. We will not get her commitment on how she will decide future cases, we never do, and that is how it should be. On some settled law, we should get an idea on what side of the fence she falls on.

It really pisses me off when people accuse me of blindly following Obama, when in fact, I am following the steps clearly laid out in our Constitution.

While I don’t know one way or the other how Ms. Kagan would do on the court, or whether she would move it to the right. My gut instincts from what I know, is that this will be proven wrong, but who knows. If I, or anyone else wants to pick their personal choice for the SC, then they need to make a sign and run for the office themselves, or myself.

Obama did that and won. He gets to make the pick, and that is just the way it is.

PS – I have about had it with the acrimony myself on this matter, but there will be no peace. I guess that is the cacophony of democracy.

edit- and I heard this morning that fully 40 of the 111 people that have served on the SC had never been judges prior to nomination. Imagine that.

31. 31
aimai says:

You know, I actually think Kagan isn’t progressive enough for me. And I’m sick and tired of my Presidents being forced to act as though Liberalism and Progressivism are things that ought not to be spoken of aloud when nominating a Supreme Court Justice.

However: I absolutely think Kagan should be confirmed *just because Obama picked her.* I don’t see the slightest chance that by throwing a hissy fit the left, such as it is, gets a rip roaring radical firebrand onto the court. And I do see such attacks as undermining both Obama and the Dems in what they are trying to do which is, arguably, trying to get a pretty good, reliable, non conservative and non corporatist hack on the bench.

Like Bob Kuttner I’m tired of Obama continually throwing away the chance to change the political conversation in this country. But we elected him, and I respect him for everything that he is trying to do even if I often think there might be better strategies for getting there than the ones he’s chosen. So I fully support Kagan for the Supreme Court and I wish we could actually just do away with the dumb show, literally, of senators pretending to check out her bona fides. Caligula got a horse put in the Senate. Bush would totally have gotten Harriet Miers on if she hadn’t been attacked from the right. I think the Senate has proven, over and over again, that it cant be trusted with a wet firecracker let alone with private time examining the soul of the next supreme court justice.

aimai

32. 32
Strandedvandal says:

Amen John. Everything is a Battle Royale to the death. Everything. It’s exhausting, it’s stupid, and it’s unproductive.

33. 33

@MMonides: I’m only about halfway through the podcast right now, so I’ve seen Lessig do his damage. I’m looking forward to Lithwick’s.

Part of the problem with the discourse, I think, at least as far as it concerns SCOTUS and the Constitution, is the way so many people deify both the documents and the Framers, and act as though it’s heresy to consider that they didn’t answer every single possibility. The Framers knew the Constitution was defective when they wrote it. That’s why they made it possible to amend the thing, and why they amended it almost immediately.

34. 34

@MikeJ:

Since Labour voters would probably prefer it, and LibDem voters probably prefer it, who are these “voters” who will be outraged? The Conservatives, who got fewer seats than they need and don’t appear to want to make a deal.

There has been some polling (I’d link, but I’m far too lazy) that has shown that UK voters believe that the party who wins a plurality of seats should be the governing party and work a coalition.

That being said, Labour and the LibDems received 52% of total vote. An alliance between the two would still net less than the 325 seats needed to govern. The Tories only took 36% of the vote. So it does seem as though the UK, on the whole, is generally more left-inclined.

Of course, things aren’t that easy. Plenty of strategic voting goes on in the UK because even though there are 3 parties, usually only 2 of them (a different two every time) are realistic winners in each constituency. So who knows where the voters really stand? There’s actually a lot to like about David Cameron, who stands in stark contrast to the traditionalist Tories. If the GOP had a leader like Cameron dragging them into the new world, we’d be in a pretty good situation. The real answer coming from the UK election is…..who the hell knows?

35. 35
Anton Sirius says:

@tim:

God, John, just turn off the TV and radio and don’t read blogs all day.

It’s funny, that’s exactly the advice I give a certain right-wing blowhard I regularly belittle on another board, one that isn’t about politics but inevitably has political threads break out like a rash. A while ago, this poor unfortunate soul asked, in all seriousness, if Ed Schultz wasn’t “the voice of the left.”

36. 36
Tom Hilton says:

I am just tired of all the acrimony. Every political event in this country is immediately followed by just heaping loads of bullshit. Within minutes of the Kagan announcement yesterday, we learned, depending on the source, that Kagan was the worst most unqualified choice ever or the best, most smartest person in the world. There appears to be no middle ground whatsoever.

Setting aside the wingnutosphere–because there, lunatic acrimony is a given–the problem [on the liberal side] is people who believe on a fundamental level that having the right opinions is more important than behaving decently (yes, Glenn Greenwald, I’m looking at you). Once you make that assumption, you inevitably extend it to narrower and narrower policy differences, until anyone who disagrees with you on the most trivial and arcane policy details becomes a ‘wanker’ and a ‘sellout’ and worse.

37. 37
ChockFullO'Nuts says:

I pretty much agree with you, John. I might disagree slightly on the Kagan thing, I don’t think it is too much to ask ordinary people to learn about a SCOTUS nominee a little bit. So I did, and I listened to her yesterday, and decided that she looks and sounds like a good choice, and probably headed for confirmation unless something ugly turns up. Until the thing is settled, though, I don’t need to listen to the daily tedious soap opera of never ending political churn and crap about it for the rest of the goddam summer. One minute of listening to the likes of that piece of human feces Ron Christie is all I need. One minute of listening to the odious Mitch McConnell, I am done, I get it, I think the man is vile and disgusting, and on the strength of his one speech yesterday alone I would confirm Kagan and every other Kagan on earth for the next 1000 years no matter who nominates all those Kagans.

And, I think Barack Obama is gloriously qualified to nominate judges, and I think that I would be stupid beyond words not to assume that his choices are sound. And so would everyone else.

38. 38
norbizness says:

I agree with Aimai at #31. It’s a bland, unappealing pick, but it’s over now. I understand the perfect being the enemy of the bland and unappealing, but this isn’t legislation you can fix.

Unless she has some sort of talisman that convinces Kennedy to consistently be the fifth voter for a judicial philosophy that’s non-reactionary, why not pick somebody better?

39. 39
Anton Sirius says:

Amen John. Everything is a Battle Royale to the death. Everything.

Including, apparently, the choice between “thinking for yourself” and “deferring to authority”. You’re not allowed to think for yourself and realize there are areas in which it’s a good idea to defer to someone else’s authority.

40. 40
Gregory says:

@Rosalita:

They are putting themselves out of business.

If only. It couldn’t come fast enough, but cable news gabfests aren’t going anywhere. Pro wrestling proved there’s always a market for a scripted shouting fest on TV.

41. 41
Nick says:

@aimai:

Like Bob Kuttner I’m tired of Obama continually throwing away the chance to change the political conversation in this country.

He never had the chance and never will. Before he even gave his victory speech on election night, every media network was having in depth conversations about how he had to govern as a Republican because he won Florida and Ohio.

You get the chance to change the political conversation in the country when you control the media.

42. 42
RP says:

My only criticism of this post is the false equivalence. You’re absolutely right that there has been a ton of bullshit from Kagan’s critics on the left and right, but I don’t see a lot of people saying that she’s “the best, most smartest person in the world.” I think those who support the pick are arguing that she’s very smart and very well qualified, and neither of those points should be controversial. I don’t see anyone saying that she’s the second coming of Oliver Wendell Holmes.

43. 43
Mnemosyne says:

Tbogg is on your side, John.

I’m still trying to figure out why people seem to think that Obama and Kagan have been friends for 20 years and yet have never even once discussed the law or the Constitution despite both being, you know, lawyers. Greenwald and his minions may consider her to be a “blank slate,” but I doubt Obama does.

44. 44

Watch Lessig calmly take apart the hyperbole from Glenzilla in the second clip Ezra posted this AM.

45. 45
Nick says:

@Gregory:

Pro wrestling proved there’s always a market for a scripted shouting fest on

as well as Jerry Springer and the Real Housewives of New Jersey.

46. 46
Joe Bauers says:

@MMonides:

“Anyway, I was very amused to see Lessig and Lithwick politely call Greenwald a liar last night on Maddow.”

I take it on faith that he has posted a 100,000 word rebuttal this morning.

47. 47
And Another Thing... says:

And thus spake tbogg…

48. 48
Anton Sirius says:

Unless she has some sort of talisman that convinces Kennedy to consistently be the fifth voter for a judicial philosophy that’s non-reactionary, why not pick somebody better?

You have just pinpointed Ed Whelan’s biggest fear:

In the shorter term, President Obama’s evident aspiration is that Kagan would be effective in cultivating the court’s swing voter, Justice Anthony Kennedy, and in moving him leftward. The resulting five-justice liberal majority could be expected to reject challenges to Obama’s broad expansions of government power and to invent new rights, such as a federal constitutional right to same-sex marriage.

49. 49
NobodySpecial says:

Maybe it IS the head cold, because you’re not making much sense with that update. You say you’re sick of the acrimony, then you rip on anyone who asks a question, conflating them with the real nutjobs out there and dismissing questions as ‘pet peeves’ and ‘distorted views’.

EDIT – of course, Aimai is right. Done bun, etc. And Obama’s made his pick, and we should support it. And hell, I don’t even think she’ll be that bad a pick. But I don’t put any stock in the idea that she’ll move Kennedy as much as Stevens did, and I don’t know how anybody can predict that she’ll be fine on that basis.
If we’ve got ‘distorted views’, it’s because the glass covering this nominee is about three meters thick and tinted Coke bottle green. We know next to nothing about what she thinks about important stuff that’s going to be facing the Court, and her record has been all about making sure that there’s no paper trail to hang on her. So all we do have is Obama’s and the various people who know her and talk to her that she’s a good egg, really, and going to be a good solid vote. That may be true, but Obama’s managed to hedge around enough stuff like Gitmo that a lot of people aren’t willing to take his unvarnished word anymore. That’s not anyone’s fault, that’s human nature, and the preemptive snark from the usual suspects doesn’t do much to allay it, either.

Add to that a heaping helping of that feeling that all too many on this blog and others get that once again, Democrats tiptoe where Republicans stomp and make real gains. And, of course, if we say anything about it, we get the Broderisms from the usual suspects that, by golly, this really IS a center-right nation, and nothing can be done, and shut up already. It especially gets worse when you say that a decent nominee like Wood can never ever ever get through because Obama doesn’t want a fight over abortion. Forget the fact that the majority in this country support at least limited abortion and that while we may not want a fight, the Republicans sure as hell do and are having that fight without us, which is why women’s protections are under attack in several states. If we can’t fight for a Democratic party plank, what the hell are we SUPPOSED to fight for?

50. 50
sparky says:

@tim: nice post, and yes, i agree completely, though my change came after 2004 when it became apparent that most americans would prefer to believe a story than be bothered to look at the facts.

as for the Kagan nomination, Obama can nominate whomever he wishes. it is indeed his decision. but that doesn’t mean i have to like it or agree with it. but disagreeing with a decision is not the same thing as actively opposing it. i see no point in doing the latter.

interesting there hasn’t been any comment here about the HLS hiring issue. maybe it hasn’t surfaced enough yet.

51. 51
Zifnab says:

@aimai:

However: I absolutely think Kagan should be confirmed just because Obama picked her. I don’t see the slightest chance that by throwing a hissy fit the left, such as it is, gets a rip roaring radical firebrand onto the court.

Well, that’s the thing. The liberal Democrats could probably get more of a liberal firebrand if they pushed hard BEFORE Obama made his choice. But without a hard push from the left on a given candidate well before it’s time to choose, you’re not going to see serious motion.

On the flip side, once Obama picks his nominee, it’s TOO LATE. Complaining now is asinine. Obama isn’t going to withdraw the nomination because a handful of bloggers throw a hissy fit. Aside from the absolutely terrible optics of such a move, there’s the simple intractability of political decision making. Once you put the train in gear, it’s going to keep rolling.

If the blogging left wants to get a more liberal justice, pushing for John Paul Steven’s seat isn’t going to work. But Ginsburg is nearing retirement. And Scalia and Kennedy aren’t getting any younger. Perhaps, if the liberals love Diane Wood so much, now would be a good time to start marshalling support for her nomination in a year or three, when another justice retires.

52. 52
wonkie says:

A Supreme Court nomination is not the vehicle for changing the political conversation. I see nothing wrong and everything smart about picking someone without a paper trail, particlularly in the crrent atmosphere of hyperpartisanship and media bias/decay. I’m disapoointed the Obama doesn’t change the conversation by shutting down Gitmo, pulinng out of Iraq and Afganistan, makinng a bigger deal of R obstructionism, backing progressinve legislation…but a Supreme Court nomiation just isn’t theplace for making a stand. He’d lose and then where would we be?

53. 53

Yup.
I don’t think I can wade thru another 3 months worth of “she sucks!/she’s great, she’s a genius/she’s a moron” from the blovosphere. John’s right, let the Committee earn its pay; I’m busy, and pass the martinis.

54. 54
Gregory says:

In 1974, Madeline Kahn was the sexiest woman on the planet.

1974 and beyond, my friend.

55. 55
Morbo says:

@Joe Bauers: Only 1530.

56. 56
ChockFullO'Nuts says:

cable news gabfests aren’t going anywhere

That’s right, and they know that they go on the air with the absurd “debates” they have, and not the absurd debates they wish they had. So if all they have is Mitch McConnell pinching off the pathetic embarrassing turds of thought that fell from his lips yesterday to the effect that Kagan has only as much judicial experience as William Rehnquist had when he was nominated and therefore has no business being a fucking justice, then that is what they will go with at air time.

57. 57
Maude says:

@tim:
He can’t do that. Someone has to pay attention so I don’t have to.

The ones claiming that some are cult following are the same ones whom Obama has failed in many ways today.

58. 58
General Egali Tarian Stuck says:

. 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.

Many times yes.

59. 59
Tom Hilton says:

@slag:

This is the real world. This shit matters. And people need to pay attention.

“This shit matters”, yes, but not every last detail matters. The difference between Diane Wood and Robert Bork? Huge. Definitely matters. The difference between Diane Wood and Elena Kagan? Minimal, possibly negligible. (There may be differences that play out in unpredictable ways, but those ways are…unpredictable.) And the problem John is talking about is people applying the “this shit matters” standard to Wood/Kagan differences as if they were Wood/Bork differences.

IMO, some people need to pay less attention, because paying too much attention to the finer points makes them lose sight of the larger issues.

60. 60
geg6 says:

Well, Cole, if it makes you feel any better, it’s posts like this that remind me why I love you. ;-)

And, yes, you are exactly right. Kagan seems fine so far to me and I’ll wait to see what else pops up over the next few weeks or months before I get too excited, either way.

61. 61
ThatLeftTurnInABQ says:

@satby:

And I wonder sometimes if that’s part of the purpose; the more people become disengaged, the easier it is to control the message and swing elections.

Ding! Ding! Ding!

We have a winner.

Making politics as toxic as possible and making (for most people) paying even rudimentary attention to the news as painful and unpleasant as possible, is a feature not a bug, for the extremists who want to drive all the moderates out of the political system – which is how they get their hands on power. Screaming, yelling and flinging poo 24×7 is how the inmates take over the asylum.

62. 62
Mnemosyne says:

The Maddow transcript is up. I’ve only gotten through Greenwald and Lessig but, man, Lessig is pwning Greenwald.

Lessig: But the hyperbole in what Glenn is saying here is really something we have to check. He said right at the top of your show that there‘s a complete blank slate here. That every substantial legal question she has left unanswered.
__
That is just absurd. She has written three extraordinarily important pieces mapping out a theory of the First Amendment. That was the first work she did as a scholar at the University of Chicago. And when she came to Harvard in 2000, she wrote what is, I think, one of the most important articles about presidential administration in the last 30 years.
__
Now, that‘s two of maybe five central areas of what a justice has to think about that she already has what I think is an extraordinarily important theory. So, the idea that somehow she‘s been sitting zephyr-like in a way that tries to hide what she‘s saying is just silly.

63. 63
JMY says:

They are mad because he didn’t pick who THEY wanted. It’s that simple. He was going to make his choice and not appease the left-wing of the party (Glenn, FDL, Kos, Arianna Huffington, etc.). He criticized George W. Bush for nominating Alito because he felt he was trying to appease the right-wing, instead of finding someone who was a consensus builder. That’s what Kagan is to him. Someone who could be persuasive to the other side.

It was his choice, and they forget that. They really do think that Obama has some plot to just completely shatter the hopes and dreams of all liberals in this country.

64. 64
Punchy says:

I just am sick and tired of battles to the death, with the battle lines drawn instantly and with no wavering.

The stakes wouldn’t be so damn high if the Court actually had some intellictual credibility. Right now, every single decision is at least the 4 justices reflexively ajudicating in whatever way pisses off the most liberals. It’s the most broken, partisan, hackish SC I’ve ever seen.

This is why libs are so concerned. Bush stacked with hard-core, unyielding conservatives, and lots of peeps want Obama to fight back similarly.

65. 65
cat48 says:

If something comes up and if someone can make a persuasive case she should not be the next Justice, I’ll listen. She doesn’t deserve the seat just because Obama nominated her. But I’m not going to spend the next few months chasing down every single person’s pet peeve or biting on everyone’s distorted view based on a selective quotation of one thirty second speech and then pitching a fit that Kagan is the worst person in the world.

That pretty well sums it up. I’m not going to play this time either other than an occasional comment.

My first comment is why is Sully insisting Kagan come out if she’s gay? He’s waiting for a reply to his email to the WH. Now they have said twice she’s not gay and I personally don’t know. But he has read things online and wants it settled quickly! She must come out! Every person has their quirks, but I never understand his tirades he goes on. He still writes about “Palin’s suspicious birth of Trig” even though the rumor appears not to be true. No reading him for a while I guess.

66. 66
PanAmerican says:

@MikeJ:

they want to see him publicly defer to the left their white privilege.

THAT game is constructed so Obama can’t win. So why the fuck should the administration or any of us play along?

67. 67
NobodySpecial says:

Somehow, FYWP did a Frankenstein on my edit. It should be on the end.

68. 68
elmo says:

IMO, some people need to pay less attention, because paying too much attention to the finer points makes them lose sight of the larger issues.

You haz a smart.

69. 69
Mnemosyne says:

Geez, I should have read further:

I mean, this is another area where Glenn has just flatly misstated the case. In his piece on “Democracy Now” on April 13th, he said that in that article she talked about the power of the president to indefinitely detain anyone around the world. Now, that article was written before George Bush, before 9/11 and before George Bush articulated anything about this power.
__
It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated is kind of uber-power of unitary executive was nowhere even hinted at in Elena‘s article.

Gosh, you mean that Glenn is dishonest and is pulling phrases out of Kagan’s articles that she wrote before Bush was president to claim she supported Bush’s grab of executive powers? Color me shocked.

70. 70

@aimai:

I wish we could actually just do away with the dumb show, literally, of senators pretending to check out her bona fides. Caligula got a horse put in the Senate. Bush would totally have gotten Harriet Miers on if she hadn’t been attacked from the right.

Here’s the thing – that show is the reason that Bush didn’t get Harriet Miers on the Court.

Democrats complained she was completely unqualified. Conservative activists were terrified of her non-existent paper trail. But she would have gotten confirmed despite these objections except that Republican senators spoke with her in private meetings and found her knowledge of Constitutional Law and the very basic principles woefully inadequate for the big stage. She would have been a total embarrassment.

It turns out that the Democratic charges were right. The Senate proved that through process.

71. 71
poledancer says:

Politics through Attrition. That’s the right’s game plan, me thinks. Simply wear down the other side until they give up out of exasperation, exhaustion, etc. because at the end of the day you have a job and a yard to mow and pets to take care of and bills to pay. In other words, a life. They see this as the taking of “their country” and that the leftist, socialist, muslim loving, terrorist coddling douchies from the Democratic Party are threatening their way of life. So they will fight tooth and nail until they drop dead during a protest because Wolverines! that’s why. A lot of these tea party folks see themselves as the Nathan Jessup character from a few good men. Willing to do what others won’t in order to save the world from the Dems. They are living a stylized, heroic movie in their heads and they don’t you and your kind making noise during the movie, thank you very much.

72. 72
aimai says:

@Nick:

This is completely wrong–changing the political discussion in the country is something that Obama–despite not controlling the media–is clearly doing every day. In every speech. I just don’t think he’s doing it as effectively as he could. But its really clear he’s trying to do it. In other words if you look at some of the small steps the Obama administration has done (making a logo to go with the stimulus money, for example, or moving out ahead of the series of disasters with speeches pointing out the necessity of government interventio), and all of his speeches, its *very very clear* that Obama agrees with me that only by changing the entire political discussion can we move forward. The question is–how? I’d like to see a more agressive movement–like Sestak’s ads attacking Specter.

My only quarrell with Obama is that he’s not an agressive person, and he can’t seem to get the Dems to rally around him agressively. That’s who he is as a politician, and as a man, and its great. All that stuff should be delegated anyway–Bush always delegated his dirty work and stayed above the fray. He needs more and better surrogates on the hustings, all around the country. Its not something he can do alone. And its not something that he or the Dems can do without professional help. I don’t think its fair to expect Obama to do all the heavy lifting on his own. And I don’t think its fair to think that he can do it all on his own. But when people say “Obama should do X” or “I’m dissapointed in Obama because of Y” most of the time they are talking about Obama in his position (imaginary though it is) as head of the party/a large organization. They don’t really mean Obama has to do X or Y himself. I’d be satisfied if the Obama administration worked more closely with, and empowered, liberal and progressive organizations to push hard for things as a way to shift the discussion.

aimai

73. 73

What makes this exhausting is two-fold.

First, adult leadership has left the building. There was a time when people repeatedly wrong would have been marginalized. Grownups would say “Coulter might be good for ratings, but she’s not coming on my show unless she’s wearing a bunny suit. Why a bunny suit? So everyone knows how seriously *I* take her.”

(Besides, that way, if Harvey saw her, he’d kick her ass for behavior unbecoming of a pooka.)

Second, the meme has come about that it’s okay to lie. Maybe it’s not necessarily okay to deliberately and expressly state a falsehood, but it’s definitely okay to lie by omission, e.g., by BP not saying “Oh, and our estimates of how bad the oil spill is? They’re complete and utter bullshit; we’re just saying something that sounds good so people won’t start yelling for a few more days.”

Add a bit of leadership, and a bit more revulsion for lies, and we wouldn’t be in a golden age, but at least it wouldn’t be shit-stained brass.

74. 74
flukebucket says:

Bush would totally have gotten Harriet Miers on if she hadn’t been attacked from the right.

Would that have been a good thing or a bad thing?

But yeah. The Sturm und Drang does get old. The first thing my wife said this morning when she turned on the TV was “I hope they don’t hammer and hammer and hammer this Supreme Court Kagan horse shit for days and days”

It would be nice sometimes if everything could be treated like the Nashville Flood.

75. 75
Jim, Foolish Literalist says:

I take it on faith that he has posted a 100,000 word rebuttal this morning.

and faith shall be rewarded….
I appeared on The Rachel Maddow Show last night to articulate the case against Elena Kagan, and was then followed by Kagan friend and defender Larry Lessig of Harvard Law School, who spent five minutes (in my absence) trying to discredit me and what I said (video of the two segments is below).

76. 76
slag says:

IMO, some people need to pay less attention, because paying too much attention to the finer points makes them lose sight of the larger issues.

This does not appear to be a problem John is having. He seems to be keeping sight of the larger issues quite nicely. And encouraging others to do the same, which is good.

77. 77
aimai says:

I have to disagree–I think the Republicans rejected her because their own base turned on her and they were afraid of massive embarrasment when she flamed out. They didn’t inquire into her judicial philosophy and intelligence and find it wanting. They found it politically inexpedient. The elevation of Justice Thomas to the Supreme Court is evidence that in pursuit of partisan gain the Republicans would be willing to put a potted plant on the court. I very much doubt that anything can or would emerge from Kagan’s past or in terms of her intellect that would rightfully disqualify her, or that this will emerge from unbiased private questioning.

aimai

78. 78
rumpole says:

There is a middle position. A couple of things to be really concerned about (Greenwald’s good on this, and I think he’s right).

1. The fact that you have a job, or a yard, makes you eminently qualified to opine. You don’t need to be a legal expert. In particular: Suppose the government picked up someone off the street, held them indefinitely without trial, and could crush all legal procedures to determine their guilt on the grounds that they have declared that person an enemy combatant. That vote was 5-4. She has evinced rather strong support for the government’s position. That, to me, is a deal-killer.

2. I have a near-presumptive distrust of legal academics in many cases, particularly those that have never represented real clients (actual people, as opposed to causes or corporations). With that level of detachment, it’s pretty easy to do things like imprison people forever, or give corporations free speech rights. Although you teach the law, you are removed from its human impact and oblivious to it. I don’t know if she’s like that or not, and that’s kind of the problem for me.

3. There is something inherently sleazy about someone saying that nominees should be forced to say what they think on the record, and then back away from it once you’re nominated. The Rs will excoriate her for her hypocrisy, and they will be absolutely right. Once she gets on, no one has any control over her, and she will do exactly what she wants. It says something unflattering about both her character or that of the people who nominated her. The whole “shut up and trust me” groupthink didn’t work under Bush, and the same rules should apply to Obama.

4. The great irony of this whole process is that a legal academic’s job is to grade others on their ability to analyze hypothetical situations. That is the basis for entering the profession. Yet if you want someone to decide -actual- cases, you cannot ask them about hypotheticals. I do understand the political reasons for this–Fox news doesn’t do nuance and being asked hypos by the likes of Sessions et al. doesn’t exactly sound like a festival of public enlightenment either. This problem may be intractable. In the absence of any public writings and her contrary public statements, one would think that the reasons to demand concrete answers are particularly strong–from both sides. The entire process has become a complete charade.

79. 79

@Zifnab:

Diane Wood is not going to be nominated. She. Is. 60. It’s. Not. Happening. There was a push for Wood before the nomination, the problem is it was a push for someone who was too old to get serious consideration.

80. 80
MMonides says:

@Joe Bauers: @Jim, Foolish Literalist: Indeed, if there’s anything Greenwald can’t stand it’s having his “facts” held up to the light. It never ceases to amaze me how allergic our progressive (I use that term loosely in Glenn’s closeted Libertarian case) fact-checkers and gadflies are to being fact-checked and gadflied themselves.

81. 81
NobodySpecial says:

@aimai:

My only quarrell with Obama is that he’s not an agressive person, and he can’t seem to get the Dems to rally around him agressively. That’s who he is as a politician, and as a man, and its great. All that stuff should be delegated anyway—Bush always delegated his dirty work and stayed above the fray. He needs more and better surrogates on the hustings, all around the country. Its not something he can do alone. And its not something that he or the Dems can do without professional help. I don’t think its fair to expect Obama to do all the heavy lifting on his own. And I don’t think its fair to think that he can do it all on his own. But when people say “Obama should do X” or “I’m dissapointed in Obama because of Y” most of the time they are talking about Obama in his position (imaginary though it is) as head of the party/a large organization. They don’t really mean Obama has to do X or Y himself. I’d be satisfied if the Obama administration worked more closely with, and empowered, liberal and progressive organizations to push hard for things as a way to shift the discussion.

Absolutely. Probably, if you had to boil it down, this is the single biggest reason people are ‘disappointed’ in Obama – they don’t see an outreach to liberals and progressives to move things. When they don’t see it, it might as well not exist at all.

82. 82
BTD says:

It’s not clear to me why John Cole must have an opinion on anything, much less Elena Kagan’s nomination.

If you are not interested in engaging the subject, then don’t.

However, I see no reason why you should take those who are interested and have an opinion to task for having opinions and expressing them.

Your update in particular strikes me as off the mark.

83. 83
liberty60 says:

This is why i am active in the Coffee Party (shameless plug) because it was founded upon this sort of desire for something better, a dialogue based on facts and ideas, not machiavellian posturing and ideological fevered jihads.

There is a difference between a firmly held strongly felt conviction, and a simple tribal hatred. This is why I am also so cool to the sniping about Greenwald/ Sullivan/ et al within these pages.

There was a guy over at RedState who ended every single post with the signature line of “Charlie Crist delenda est” a requoting of the Roman Senator who would end every speech with “Carthago delenda est”.

I guess he thought it was cool and would impress teh mouthbreathing rubes, all quotin’ history in Latin and all.

But it also was fitting, in that he was (maybe unwittingly) echoing the mindset that destroyed the Roman Republic.

The Carthaginians came from a culture of negotiated battles, where the two sides would fight, and then negotiate a truce, with one side walking away richer, an the other living to fight another day, poorer, weaker, but still alive.

The Romans saw things differently- every battle was a battle to the death, and in the end, they slaughtered the Carthaginians, virtually exterminating them.

Its like that now, with the Right mostly, but some on the Left seeing total victory or total surrender as the only two options.

Never mind that this is a fundamentally undemocratic posture- in a democracy, we accomodate minority viewpoints, sharing power and reaching compromise.

84. 84
Punchy says:

Something else for Cole to note: this nommy doesnt change the balance of the court one iota. Just wait until Obama gets to replace one of the RATS (or Kennedy) for the fundemental shift in power in that branch….THAT will be a bloodbath like the country has never seen before.

85. 85
ChockFullO'Nuts says:

Keep in mind that Harriet Miers was sunk by conservatives who feared that she didn’t have a firm enough grasp of the law and its complexities to deserve a seat on the court, not because of her lack of judicial experience (again, the same amount William Rehnquist had when nominated).

86. 86

The sun is over the yard arm somewhere. Particularly when you use the “Australian all-purpose moveable yard arm”

87. 87
Martin says:

There appears to be no middle ground whatsoever.

There is, though. I was one of the quick defenders of Kagan, but I never suggested she was the best pick. The Anti-Kagan meme started a month ago with Greenwald (and nobody else, AFAIK) and it’s built and ratcheted up to where she’s now Scalia with a skirt. At this point, anyone saying ‘she’s not that bad, and the choice makes sense from this *other* perspective’ isn’t a case of cheerleading for Kagan so much as pointing out to the other folks that have whipped themselves up into perfect victimhood that Obama isn’t really Hitler here, and Kagan isn’t really going to be the Dr. Mengele of the Supreme Court, no matter what mission they think that GG and now Jane has sent them off to do.

I haven’t seen a single supporter of Kagan denigrate any other of the potential candidates other than to say that Wood is a little old if we’re trying to hold a position for an extended period. OTOH, the attacks against Kagan at times turn vicious and they contain virtually no substance supporting why some other pick would be better. That tells me they took their marching orders from GG, took his moderate opposition to Kagan, added in their own idiotic viewpoints which GG obviously discounted as irrelevant (otherwise he would have mentioned them himself, GG not known for his brevity of argument) and have decided that a contrarian Kagan opposition somehow makes them look like independent thinkers rather than some kind of contagious fungus.

88. 88
Person of Choler says:

“I am just tired of all the acrimony.”

Huh?

This is like hearing Warren Buffet say that he’s tired of money.

89. 89
John Cole says:

The fact that some of you state I am “attacking” people who have questions or opinions pretty much confirms everything I have said in this post.

90. 90
Poopyman says:

@aimai:
Thanks aimai, for pretty much summing up my thoughts.

But I would add a couple of things:

First, IIRC Kagan has supported Holder’s views on Miranda as well as a number of other executive branch positions that I’m a bit leery of. But of course, that’s her job as Solicitor General. I hope she’s against giving more power to the executive branch than she’s indicated to date.

Second, I think this pick accurately reflects Obama’s refusal to pick a fight he could absolutely win by choosing a more liberal candidate. Whether this is because he’s not a fighter (ample evidence for this already) or because he truly doesn’t want a progressive (ample evidence for this too) I don’t know. But I think it’s this that I truly find frustrating. My problem is more with Obama than with Kagan.

And this meme about her being the one able to move other judges to her POV? Give me a break! Anyone who has had the slightest interest in how the court has done business in the past year knows that there are 4 hardcore idealogues that won’t move anywhere, and does anyone really expect Kennedy to be that persuaded by another Justice? He seems to pretty much follow his own counsel, as it were.

91. 91
General Egali Tarian Stuck says:

@Martin:

makes them look like independent thinkers rather than some kind of contagious fungus.

Suitable for framing

92. 92
sparky says:

It really pisses me off when people accuse me of blindly following Obama, when in fact, I am following the steps clearly laid out in our Constitution.

well then, it looks like you and Justice Thomas should be best buddies, since that’s his point of view too.

people like me give you a hard time because your opinions, without fail, align with whatever it is the Ds are pushing at the moment. after a while it looks kinda…odd, unless you want to say that it’s your considered opinion that everything Obama et al decide is correct. and you can certainly hold that point of view, if you wish. but it’s my opinion that a doctrine of party infallibility does not really serve the common weal.

93. 93
NobodySpecial says:

So which part of

But I’m not going to spend the next few months chasing down every single person’s pet peeve or biting on everyone’s distorted view based on a selective quotation of one thirty second speech and then pitching a fit that Kagan is the worst person in the world.

exactly welcomes debate and questioning? I’m curious.

94. 94
General Egali Tarian Stuck says:

Second, I think this pick accurately reflects Obama’s refusal to pick a fight he could absolutely win by choosing a more liberal candidate.

Or, it could just be that Obama picked Kagan because he thought she would make a good justice.

95. 95
Objective Observer says:

Greenwald’s tactic today: Flood Twitter with “Conservative __________ loves Kagan! Conservative __________ loves Kagan!”

It’s pathetic.

96. 96
John Cole says:

@NobodySpecial: So I have to chase down every single person’s opinion, then give my opinion on it, and if I don’t, I’m STIFLING DISSENT AND QUESTIONING.

Are you smoking crack rock?

97. 97

@cat48:

My first comment is why is Sully insisting Kagan come out if she’s gay? He’s waiting for a reply to his email to the WH. Now they have said twice she’s not gay and I personally don’t know. But he has read things online and wants it settled quickly! She must come out!

Sully’s random obsessions can be bizarre and totally unnerving. I like him quite a bit (I realize many here do not), but it seriously undermines his credibility.

My first response to Sully’s Kagan “concerns” was, “Why should I care if she’s gay?” I understand that he believes it would be great if there was a gay person on the Court because it would be historic, but I don’t particularly care about her sexual preference.

My second response was to just be irritated. She says she’s not gay. The White House has said that she’s not gay. Why is it a requirement that she “come out”? What if she’s (*GASP*), actually not gay? Why is her being homosexual the only possible outcome? Can’t we just take people at their word on their sexual orientation?

98. 98
demo woman says:

@John Cole: Well, duh!
It was a good post by the way.

99. 99
BTD says:

John Cole at 89:

Is this not a protest by you of too much opining on the Kagan nomination?

Obviously, some of us our lawyers and thus much more interested in this subject than most. I have written dozens of posts on the subject.

I like to think they are well researched and thought out. But to many, apparently including you, none of this is of interest.

So don’t read posts from those who are interested.

I see no reason why you found it necessary to write this post.

And if you are not protesting so many pixels on the Kagan nomination, then what precisely is your point in this post?

100. 100
frankdawg says:

If you think the next few weeks will illuminate anything either your head cold has killed brain cells or you have not watched the last few confirmation attempts!

Heres a fun thought: What if all the howling from the left is just cover so Dems can punch hippies while they confirm a liberal? I don’t believe it but it will make the wingers nuts to contemplate & draw in those who still believe Obama plays 11 dimensional chess.

101. 101

I suspect that Ms. Kagan is a tough cookie and will emerge from the coming trial in good shape, whether she is confirmed or not. I am not going to worry about her.

How many votes does it take to confirm a judge?

102. 102
demo woman says:

103. 103
Nick says:

@aimai: Last week, Politico had a piece up about the media being pissy the administration wasn’t giving them massages and blow jobs, and that they’re upset because the administration is far too aggressive on them. It’s ludicrous to think a more aggressive push to change the discourse would work, the media just won’t allow it.

I have worked for the media for the better part of the decade. The general consensus among EVERYONE is that this administration is already too aggressive in their push to change the discourse, perhaps to the level of Teddy Roosevelt, to the point where a lot of reporters just want him gone in 2012 so they can get back to just talking about lost little girls and the awesomeness of America instead of boooring stories about healthcare, financial reform, and the plight of those who my colleagues perceive as just not worthy of coverage…you know, the working class.

104. 104
Rosalita says:

@Gregory:

I was actually thinking of those who have just given up on teevee news and in some cases have cancelled their cable. But you’re right, regrettably there are too many out there who eat this shit up.

105. 105
Nick says:

@sparky: I actually respect quite a few of Justice Thomas’ opinions because he has a non-political reason for them.

His dissent on Lawrence v. Texas was especially well written. How he did not support the law, but felt it wasn’t the Supreme Court’s place to validate it. Whereas Scalia just went on a homophobic rant.

Thomas’ opinions, however nuts they are, are often made on a principal, not a political position. Thomas is a true judge, I’d argue a strict activist one, but a true judge.

106. 106
NobodySpecial says:

No. But literally within minutes of the first post on the Kagan nomination, those of us WITH questions were bombarded with Greenwald bashing and conflation of any questions on Kagan’s bonafides with some kind of Godwining. Plus the front pagers deciding that Kagan threads really REALLY need tags like ‘Manic Progressive’ and ‘OBAMA IS WORSE THAN BUSH HE SOLD US OUT!’.

If that’s rolling out the welcome mat for questioning, someone’s doing it wrong.

107. 107
ChockFullO'Nuts says:

Agreed. She seems to be about 10x the intellect of most of the senators who will be voting on her confirmation. Okay, 100x in a few cases. I don’t think they will be able to land a blow on her once the process gets serious.

108. 108
Bobby Thomson says:

It’s a lifetime appointment. “Have a little faith, baby” doesn’t cut it.

It’s not the appointment itself that is the problem. It’s the person making the appointment. The whole Dawn Johnsen experience shows that he has absolutely no interest in fighting for any truly bold nominations for anything. He doesn’t do bold. He doesn’t even do “Poochy” edgy. And he lets the refs work him nonstop.

109. 109
danimal says:

Depressing Democratic motivation is an art form for the GOP and their operatives. Cole’s apathy is the direct result of a political strategy. They fight everything, including reality, because it exhausts and exasperates rational Dems and muddies the waters for independents.

Take Lily for a walk, mow the lawn and then reengage in the fight, Cole. This country needs the sensible center and left to maintain focus and fire. Your contribution is important.

110. 110
LD50 says:

@slag:

Ummm…you’re illustrating the exact problem he is describing. This is the real world. This shit matters. And people need to pay attention. It’s integral to the whole system. And part of the problem with the system is that not enough people care about it as much as John does.

You’re missing Tim’s point.

I know leftists who are outraged at this shit 24/7, and have been for years. While I’m quite sympathetic, and I count some of them as my closest friends, I’m hard pressed to point to any real world effects their outrage has had, even after many years. If you stay outraged at this stuff ALL THE TIME, you run a very real risk of living your life with nothing tangible to show for it.

I was reminded of this when I saw a crowd of CPUSA types on a streetcorner in Oakland, CA a week ago. They kept invoking Bob Avakian as a hero for us all to follow, and I couldn’t help but wonder how he feels about the way HE’S lived his life now that he’s in his late 60s. While I’m sure he’s led a very colorful life with thousands of amusing anecdotes, you can’t help but suspect that if you’ve spent your whole life trying to advance Marxism in America, well, you don’t have a lot to show for it. Especially given that it’s all we can do just to keep idiot rightwingers from taking over everything in this country.

(And NO, I’m NOT trying to imply that ‘leftist’ = ‘Marxist’, so please no flame bullshit along those lines, ‘kay?)

111. 111
Tom Hilton says:

@Adam Collyer: And the irony there? We’d actually have been (marginally) better off with Miers than with what we got instead.

112. 112
Bobby Thomson says:

@Nick: I agree. Scalia is just a hack. Thomas is usually wrong, but principled in his wrongness.

113. 113
strawmanmunny says:

This site is like a shining rose stuck in a mound of manure. It’s depressing to read some other sites that I use to like to read but this one always makes me happy. Well, happy as an internet site can make one…..well, not as happy as bangbus.com…but still, all in all, pretty happy.

114. 114
ChockFullO'Nuts says:

I’ll put Greenwald’s position aside, because I frankly don’t understand what value he thinks he is adding … but the general flow of the Kagan circus right now has been scripted and held in reserve for a while, just for this moment in time, and it’s all about posturing and rep-re-sentin’ on the Hill, theatrics, preaching to choirs and getting on tv. It mostly has nothing to do with Kagan, or the justice she will be.

115. 115
Tom Hilton says:

@slag: right–in case it was unclear, that comment was definitely not directed at John.

116. 116
Rosalita says:

@BTD:

maybe you shouldn’t read and comment on posts that you find so useless

117. 117
Martin says:

@Poopyman: The praise for Stevens was that he was able to bring Kennedy (and others, before) around to the dissenters point of view.

I thought the point of this was to win decisions, not have 4 dissenters that we’re proud of.

118. 118
sparky says:

@rumpole: didn’t see your post before, but agreed on all of these, at least presumptively. thanks for making the argument clear and cogent.

to my mind, the difficulty here is that the only real way to understand Kagan is to understand the legal academia establishment. and the only way i can express it, briefly, is to say that while it can be quite “liberal” on personal autonomy issues, it is otherwise pretty much a captive of establishment thinking. it is perfectly plausible for a legal academic to favor transgender toilet facilities defacto suspension of habeas. and i think that’s what’s going on here: for social issues Kagan will presumably be a defender of the mores of say, 1990. but as to the national security state, she may be another Roberts.

119. 119
Objective Observer says:

It’s not the appointment itself that is the problem. It’s the person making the appointment. The whole Dawn Johnsen experience shows that he has absolutely no interest in fighting for any truly bold nominations for anything. He doesn’t do bold. He doesn’t even do “Poochy” edgy. And he lets the refs work him nonstop.

Fine.

Primary him or STFU. Obama is governing exactly as anyone who followed his rise and read his books expected him to. He is who he is. If you don’t like it, then come up with an alternative.

120. 120
LD50 says:

So, the idea that somehow she‘s been sitting zephyr-

‘Zephyr’?

Um, I *think* the word he wants is ‘cipher’. A zephyr is a kind of wind.

Jesus.

121. 121
ChockFullO'Nuts says:

Thomas’ opinions, however nuts they are, are often made on a principal

Sorry, but this, after “I respect a lot of his opinions” is a little too much cognitive dissonance for me.

Please say that you don’t mean that a guy who stands on his principles is to be respected just for doing that? Standing firm, standing tall? The Barry Goldwater version of integrity? You know, where being right is worth nothing, especially if you change your mind while getting there?

I have no use whatever for people who stand on principle for the sake of standing on principle. Those are the people who will lead a crowd of followers over a cliff.

122. 122
frankdawg says:

@Brien Jackson:
(and plenty of others)
Seriously I don’t understand what all the whining about CG’s position is about. My IQ is over room temperature & I can read and understand what he is saying.

a)There is not a lot known about her
b) She has written and/defended positions that are pro-unitary executive/privacy abuses/unconstitutional and/or anti-choice.
Given a+b CG worries that the clown shoe wing of the court will actually gain momentum.

That’s not hard to understand why are so many people trying so hard not to understand it?

You can agree or disagree that this should be a concern. I think it is particularly given that sometime in the next 6 years we will have another Republican President who will appoint the Scalito quadruplet to the court. You may believe it is not a concern & I could understand your arguments but do you really not understand CGs?

123. 123
Nick says:

The whole Dawn Johnsen experience shows that he has absolutely no interest in fighting for any truly bold nominations for anything.

yeah that’s why he renominated her when the Senate tossed her back to him.

The whole Dawn Johnsen thing was the perfect example of how the left finds it’s idols and ignores anything bad about them. I’d like to know how she became the liberal darling of the left when she has the same views on executive power as Elena Kagan? Was it because she was filibustered by Republicans?

124. 124
ChockFullO'Nuts says:

If you don’t like it, then come up with an alternative.

And thus the Broder Presidency got its start ………

125. 125
Poopyman says:

Or, it could just be that Obama picked Kagan because he thought she would make a good justice.

I’m sure he thinks she’ll make a good justice. I think she’ll make a good justice. My point was a concern that he may have passed over people he had a higher opinion for just because she is a more politically expedient choice.

Or (and?), my other point was that she may be much closer in political philosophy to Obama regarding executive branch power than I would like to see in a justice.

126. 126
taylormattd says:

A. Fucking. Men.

127. 127
sparky says:

@LD50: ok, but what exactly is your point? that because they didn’t get anything “done” their lives were useless? isn’t that an argument that could be made against, well, almost everyone on the planet? seriously: i just don’t understand what you are getting at here.

128. 128
Nick says:

Please say that you don’t mean that a guy who stands on his principles is to be respected just for doing that? Standing firm, standing tall? The Barry Goldwater version of integrity? You know, where being right is worth nothing, especially if you change your mind while getting there?

This entire paragraph is a giant contradiction.

129. 129
taylormattd says:

@Nick: She became an idol of the PUMAs. They decided that Obama was supporting her sufficiently, therefore she is good.

You see, here’s how it goes:

Obama supports = conservadem, moderate, Statist
Obama doesn’t sufficiently support = pure progressive

130. 130
frankdawg says:

@Martin:

So you would be happier with 6-3 bad rulings than 5-4? I don’t see why ruling with the majority when it is wrong is anything to be hoped for.

From a historical POV I would rather lose 5-4 and have 4 good opinions on which later courts can work back to decent after the crazies die off, which they should do in a generation with luck.

131. 131
ChockFullO'Nuts says:

Obama is governing exactly as anyone who followed his rise and read his books expected him to.

Yes, or listened to his campaign material, or his interviews …. A declared non-ideologue.

What is the real casualty of ideology? Process, discovery, evolution of thought and policy. Obama has thought this through, and knows that ideology trumps just about everything that is necessary to make self government work. He rejects it, and we are lucky to have him.

132. 132
Nick says:

@Martin:

I thought the point of this was to win decisions, not have 4 dissenters that we’re proud of.

you’re talking to people who would rather lose Congress and the Presidency than have anyone to the right of Dennis Kucinich in either.

133. 133
sukabi says:

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?

ordinarily I’d agree with you about most of it… except for the fact that the “judgment of your Senators” has been based on how much \$ they can ring out of “their judgments”… and the rest of them are flat-out nutz.

134. 134
bobbyk says:

If something comes up and if someone can make a persuasive case she should not be the next Justice, I’ll listen.

So I guess you’ve been ignoring Glenn Greenwald for the past few weeks?

135. 135
ChockFullO'Nuts says:

@Nick:

Jesus, that is the biggest Whoosh(tm) I ever saw on the intertubes, and I have seen some big ones.

First of all, the paragraph is a question. For the same effort, you could have tried answering it.

136. 136
LD50 says:

@sparky: I sure thought I expressed it clearly. Try again.

137. 137
General Egali Tarian Stuck says:

@sparky:

well then, it looks like you and Justice Thomas should be best buddies, since that’s his point of view too.

people like me give you a hard time because your opinions, without fail, align with whatever it is the Ds are pushing at the moment. after a while it looks kinda…odd, unless you want to say that it’s your considered opinion that everything Obama et al decide is correct. and you can certainly hold that point of view, if you wish. but it’s my opinion that a doctrine of party infallibility does not really serve the common weal.

WTF? are you sharing Nobody’s crack pipe. This comment is insane.

My comment just reiterated the process of how nominees are appointed. You are a professional concern troll that I have not seen one shred of evidence of having even an inkling of understanding the issues. You oppose, just for the sake of opposing with arguments mixed with some facts and a whole lot of horseshit.

My entire position on Kagan is Obama chose her which is his right, I don’t know much about her, the senate will question her, and then vote to confirm her or not. If she fails, then so be it. But I will pay little attention to smarmy left wing ideologues whining incessantly that nobody loves them and will give them the ponies they ordered.

This is an open forum and you are free to blather your nonsense ad nauseum. Some days I will bother to read it and respond, other days, I just don’t have the will nor wont to do either.

138. 138
NobodySpecial says:

@Martin:

The point is, if she can’t bring Kennedy with her, it doesn’t matter HOW liberal she is.

She’s not being brought in for her liberal bonafides. She’s being brought in to bring Kennedy in from the dark side. And I question how bringing a candidate with mostly unknown views into the Court is going to do that.

139. 139
Martin says:

@Nick:

I’d like to know how she became the liberal darling of the left when she has the same views on executive power as Elena Kagan? Was it because she was filibustered by Republicans?

Yes. SATSQ.

140. 140
Zifnab says:

@Poopyman:

and does anyone really expect Kennedy to be that persuaded by another Justice? He seems to pretty much follow his own counsel, as it were.

It feels like Scalia has him pretty hard in hand. He’s a fellow Reagen nominee, after all.

I wouldn’t say that Kennedy is unmovable. He was tractable on a number of decisions that made up the legal fight in the War on Terror. However, it’s magical thinking to believe a freshman justice twenty years his junior is going swing his vote with any regularity.

Kagan, alongside Sotomayor, is an investment in Obama’s legacy. She’ll outlast him in office three or four times over. I can’t imagine he’s making this decision lightly. But I also don’t think Obama is worrying about tomorrow’s legal dispute. Once again, he’s playing the long game. He’s going to have to, given that Kagan will be a contemporary of Scalia and Roberts for the foreseeable future.

141. 141

And the irony there? We’d actually have been (marginally) better off with Miers than with what we got instead.

Politically, that’s true. I think there was probably some truth to conservative activist concerns about Miers. Without a paper trail, she was the literal equivalent of Senior’s Souter nomination. Souter moved to the left subtly as the party moved to the reactionary right. Miers may have been a Bush loyalist, but Bush wasn’t going to be involved in cases before the Court forever. At some point, Harriet Miers was going to have to exercise her own views.

But legally, I’m more on the fence. That point where MIers was going to have to exercise and express her own opinions outside of her Bush comfort zone would have also been the place where she was completely out of her depth. That would’ve been good for us politically because the odds are that she would have been persuadable. Looking at it from the legal profession perspective, however, it’s hard not to be disturbed by the potential of a Miers appointment. Say what you will about Alito, but he was a legitimate legal professional and has actual opinions on things. He comes off as a jerk, because he probably is. He’s a doctrinaire conservative. But at least he was a viable candidate (albeit one that I would have voted against and might have filibustered if I was in the Senate).

This isn’t to say that Miers was unqualified because she wasn’t a judge. It’s fine for justices to be without experience on the Circuit Court. But consider the difference between Miers and Rehnquist and it’s no contest. The difference between Miers experience and Earl Warren (another non-judge who happened to be one of the most respected and ethical DAs in the country for 13 years before being California AG) is literally night and day.

142. 142
Chris Gerrib says:

Making Senators and Presidents earn their paycheck? What nonsense! ;-)

Seriously, good post.

143. 143
Nick says:

@bobbyk: he said persuasive.

144. 144
Bill E Pilgrim says:

I’m not sure you get it here. The value of having such a degree of criticism from the left is that people may actually pay attention to it.

Then if the argument from the center (but the actual center) wins, that’s fine, but the goal is to have the debate some day actually be between what’s now seen as “the far left” (i.e. Glenn Greenwald) and the actual center. Which would then be called “the right”.

And what’s called “the right” now, the batshit crazy-more-extreme-right-than-we-ever imagined-we’d-ever-see, would then be seen as the fringe it is, not trumpeted daily as the center of this “center-right” nation as the media does now.

In other words, two things:

1) No one listens to the left wing blogosphere anyway, really, so relax.

2) It would be nice if they actually did. So keep shouting.

And now, I have to go reload my keyboard with hyphens.

145. 145
burnspbesq says:

@sparky:

interesting there hasn’t been any comment here about the HLS hiring issue

Could be because rational people can conclude that it’s a non-issue. Deans don’t hire. Hiring committees hire. And deans rarely, if ever, control hiring committees.

146. 146
NobodySpecial says:

Some days I will bother to read it and respond

Yes, but a day when you’ll actually start doing that would be helpful. We could circle it in red on our calendars.

147. 147

@Adam Collyer: Thems the rules in good ole xtian Amurca (particularly if you are a woman), if you are single and childess = gay.

148. 148

@Martin:

I thought the point of this was to win decisions, not have 4 dissenters that we’re proud of.

False. Ideological purity before victory. see Package, Stimulus and Reform, Health Care

149. 149
Nick says:

@ChockFullO’Nuts: I’m not really sure what you’re asking. Does Thomas deserve credit for ruling on principal? Yes, absolutely. Don’t we like that on the left too? Thomas is a man who puts his personal feelings or political feelings aside to decide whether or not the Constitution merits a decision. He may have a wrong view of the Constitution, and that view wouldn’t put me in a position to appoint him to the court, but at least he has a view. There’s a huge difference between the way Thomas rules and the way Scalia or Alito rules, even though they’re on the same side.

150. 150
Martin says:

@NobodySpecial: Because it’s not views that matters so much, but how they interact with their colleagues. On that front, there’s loads of evidence, but nobody wants to trust it because it’s not formally written out. But the people that have worked along side of her for decades think she’d be able to bring Kennedy along. And it’s not just Obama, so even if you hate him what’s the argument against all of the others that praise Kagan?

151. 151
General Egali Tarian Stuck says:

@NobodySpecial: I shove shit down wankers throats. that is my job I don’t get paid for. You are one of my bestest customers and a razor blade with a keyboard.

152. 152
Nick says:

1) No one listens to the left wing blogosphere anyway, really, so relax.

Not true, we in the media use the left blogsphere often, but only when it undermines Democrats and helps conservatives.

153. 153

@strawmanmunny: Ah, the definitive statement of Ballon Juice love! And yes, I feel the same way, I think, most of the time…

154. 154
Da Bomb says:

@General Egali Tarian Stuck: I have been waiting for my plastic purple unicorn. It still hasn’t arrived.

155. 155
General Egali Tarian Stuck says:

@strawmanmunny: We make pain a pleasurable experience.

156. 156
burnspbesq says:

and faith shall be rewarded…

You win the Intertrons for the day, if not the week.

157. 157
Poopyman says:

@Nick:

you’re talking to people who would rather lose Congress and the Presidency than have anyone to the right of Dennis Kucinich in either.

Hardly. I got the president I voted for. But I gather you would rather I just stfu now that he’s in office. In the same thread where people are lamenting that the public is being turned off from the process. Nice juxtaposition there.

Look, non-stop screaming from the poo-throwers on the right is what has driven the discourse in this country so far to the right. Now is not the time – it’s never the time – to sit back and leave it to Obama to do as he will. Oh, he will do as he will anyways, but I’m happy there are still people to his left to remind him that he isn’t over here on the left.

158. 158
General Egali Tarian Stuck says:

@Da Bomb: LOL,sorry, I will send one right out:)

159. 159
Libby says:

Hear hear, John Cole. My sentiments exactly.

160. 160
Brachiator says:

but she does not have the thick kind of paper trail that would assure folks on the left where she stands.

And thank goodness for that. I have no idea where people have formed the idea that a Supreme Court Justice is supposed to have a particular political ideology, or that the Court has just become another type of gladiator combat show, liberals vs conservatives.

And the history of the court demonstrates that you cannot assume that a justice will stay fixed in his or her views (except of course, for moonbats like Scalia and Thomas).

But the best thing is that the person who actually has to make the deicison, Obama, is clearly locked into the deadhead idea that a nominee must be liberal or progressive.

So rave on and howl away. Thankfully, the adults with a wider perspective are in charge.

161. 161

Please say that you don’t mean that a guy who stands on his principles is to be respected just for doing that? Standing firm, standing tall? The Barry Goldwater version of integrity? You know, where being right is worth nothing, especially if you change your mind while getting there?
I have no use whatever for people who stand on principle for the sake of standing on principle. Those are the people who will lead a crowd of followers over a cliff.

Are you an attorney? This isn’t meant to be condescending, so my apologies. There’s a distinction here that should be noted

I respect Justice Thomas’ views but vehemently disagree with much of what he’s written. Still, one of the most important principles in our legal system is consistency. It’s nearly impossible to define “justice” – justice comes from dealing with similar situations similarly. In this manner, people know what to expect and, as a result, can behave in a predictable way.

Justice Thomas is nothing if not consistent. Aside from Bush v. Gore, which is a total nightmare of a decision and a complete outlier in his jurisprudence, Thomas has a judicial philosophy that he adheres to rigidly. He’s far more consistent that Justice Scalia, who uses “originalism” to justify personal opinions that really have no basis in law or fact. In this manner, Thomas is generally predictable. This is certainly a good thing in the law, if not the best thing in politics.

Barry Goldwater was a politician. I respect his “consistency” less because it’s not about law, it’s about politics.

162. 162
Bill Section 147 says:

@Adam Collyer: How can anyone insist that being gay has nothing and everything to do with anything?

I thought a huge part of the movement toward equality was that, insert your choice here, made no difference in your value, skills or ability. If a gay person was nominated would not Sullivan be one of those INSISTING that it just doesn’t matter?

But inquiring minds want to know!!!

163. 163
Nick says:

@Poopyman:

Hardly. I got the president I voted for. But I gather you would rather I just stfu now that he’s in office. In the same thread where people are lamenting that the public is being turned off from the process. Nice juxtaposition there.

See, this is exactly what John was talking about. People aren’t being turned off from the process because Obama is a mushy center-left President. They’re being turned off by the process because everything becomes a left-right fight. No one is ever happy and everyone has a problem with everything.

Look, non-stop screaming from the poo-throwers on the right is what has driven the discourse in this country so far to the right. Now is not the time – it’s never the time – to sit back and leave it to Obama to do as he will. Oh, he will do as he will anyways, but I’m happy there are still people to his left to remind him that he isn’t over here on the left.

so fight the poo-throwers on the right, not the President trying to grapple with governing a country where they get far more media coverage than he. The reason he isn’t over here on the left is that the left is irrelevant, they’re too small, too politically weak, and too inept to really make any noise, in part because they refuse, flat out refuse, to fight the teabaggers and instead just eat their own. They won’t fight the right because there is no public option, Gitmo isn’t closed, DADT hasn’t been repealed, or Diane Wood wasn’t chosen for the Supreme Court, without realizing that the reason all of the above has happened is because the armies of the left won’t fight the right. Why would anyone lead an army whom you’re not sure will actually follow you into battle?

Why take people like that seriously?

164. 164
General Egali Tarian Stuck says:

I feel the need to offer a passage from my own book of fractured fables.

There are no hero’s in politics, left or right, only people who want something, and people who want something else.

It is the distilled product, IMHO, of all and what we are doing here. All wanking aside.

165. 165
peach flavored shampoo says:

Thomas’ opinions, however nuts they are, are often made on a principal, not a political position. Thomas is a true judge, I’d argue a strict activist one, but a true judge.

The principal being, of course: just what will piss off the most progressives?

Thomas is as much an empty suit, devoid of integrity and intellect as Bush Jr. was.

166. 166
NobodySpecial says:

@Martin: Because I put little faith in the argument that solely because she’s got good people skills that Kennedy will automatically follow along like he did with Stevens. It might help to interact ok with someone, but it would probably also help if they could give a good, convincing legal argument that supports a position we can live with. And we have little clues as to how she feels about issues like abortion, the death penalty, the unitary executive post-Bush, and many others.

We’re being sold sizzle. I want steak. Not a pony like the usual suspects like to wheeze.

167. 167
Glen Tomkins says:

We’ve made the Supreme Court into Armageddon

SC nominations have become The Battle at the End of Time, struggles between absolute Good and absolute Evil, because we have let the SC become the last and only place that actually decides anything. It had this reputation for so long as a place of calm professionalism, above the BS and posturing that we have let take over everywhere else in our political culture, that it came to be regarded as the final arbiter of everything, even issues that seem far afield of its place in the written Constitution.

But, of course, the power that has resulted from being the final arbiter, of commanding so much respect that it could get away even with crap like Bush v Gore, is that, of course, membership on the court is now universally recognized as practically the only game in town in terms of securing real and lasting power. So of course the BS and posturing have come to town for SC nominations.

The Right has clearly been avid, and amazingly successful, at packing the court with idealogues. They’ve got four Federalist Society stooges in there already. Just one more, and Katy bar the door. So of course the other side is now frantic to prevent anyone even squishy on any of the issues where the Four might gut stare decisis from getting on the SC. And the Right is frantic to get the last Fed Society stooge from any R president, and to at least get someone squishy on at least some of their issues, from even a D president.

The stakes couldn’t be higher. And you couldn’t ask for anything more unrealistic than for the debate over such nominations to be anything but the extreme of how we conduct political dialogue in this country. We do attack ads for evertying else, so attack ads are what we do, and in spades, over this most consequential question.

168. 168
ChockFullO'Nuts says:

I’m not really sure what you’re asking. Does Thomas deserve credit for ruling on principal? Yes

That is exactly what I was asking. My question is, why is ruling on principle in and of itself a good thing, if the ruling turns out to be bad? Are you praising Thomas for his method, or for his results?

It reminds me of the Barry Goldwater Fan Club (I live in Goldwater country, I went to the same grade school he went to — no, not at the same damn time …) …. They loved him for ‘sticking to his principles.’ You always knew where he stood.

Trouble is, he was wrong most of the time. He bravely stuck to his principles and came to wrong conclusions.

Is “strict construction” a principle, or just a foolish and stubborn conceit?

169. 169
slag says:

@LD50:

‘kay?

‘Kay. What a douchey ending to an almost valid point.

But sparky‘s right. The point is applicable to almost everyone. “Don’t try so hard because you’re already a big failure” is not likely to be making the rounds at motivational seminars these days. And if tim’s or your intent is to encourage a healthier outlook, I suspect you’re doin’ it wrong.

170. 170
cat48 says:

@Adam Collyer: I agree it was unnerving. I’m like, what?? I normally enjoy his thought process, but sometimes they seem almost like a jihad. It’s very curious.

171. 171
burnspbesq says:

No. But literally within minutes of the first post on the Kagan nomination, those of us WITH questions were bombarded with Greenwald bashing and conflation of any questions on Kagan’s bonafides with some kind of Godwining. Plus the front pagers deciding that Kagan threads really REALLY need tags like ‘Manic Progressive’ and ‘OBAMA IS WORSE THAN BUSH HE SOLD US OUT!’. If that’s rolling out the welcome mat for questioning, someone’s doing it wrong.

There are plenty of other places for you to hang out if you don’t like it here. Vote with your feet, and stop whining.

172. 172
wrb says:

I was @Poopyman:

Second, I think this pick accurately reflects Obama’s refusal to pick a fight he could absolutely win by choosing a more liberal candidate

How do you know she isn’t the more liberal candidate? What is the basis? Is she a blank slate or not?

There are a lot of people who seem to have priveledged insight into her thinking. Someone at TBOG this morning stated resignedly that she was a “5th vote for torture.”

Really.

What I find myself doing is more in the line of an oddsmaker. 3 days ago the central 60% was that she was a fine, mainstream moderate liberal who would keep the court about where it is with a 20% chance she’d shift it toward the right and a 20% to the left.

After reading about her over the last couple of days the possibility that she will be particularly effective and is a liberal stealth candidate who has been preparing herself for this for years, more liberal than than anyone with a paper trail who would be confirmable. I still don’t give that possibility more than around a 30% chance, but a 30% chance is significant.

I sure as fuck don’t know though.

173. 173
Poopyman says:

@Nick:

Why take people like that seriously?

I dunno. That question should go to the MSM, which is where most of the voting public gets their version of the facts.

174. 174
NobodySpecial says:

Sorry, burnie, you don’t get to tell the people here what to post and when. I know it burns you, but you’ll just have to get over it. There’s one boss to this board, and you ain’t him.

175. 175
liberal says:

@ChockFullO’Nuts:
Nonsense. As a group, conservatives opposed her because, as someone cleverly put in in a prior post comment section, she was insufficiently pro-coat hanger.

176. 176
policomic says:

God bless you for bringing up California as an example of the disasters to which direct democracy can lead. I continue to be astonished by the ability of some of my fellow lefties to ignore the realities of the country we live in. No, the tea-partiers are not a majority, but neither are committed civil libertarians; outright racists are not a majority, but neither are enlightened multiculturalists. The ‘Murican People are neither particularly virtuous nor particularly evil, but the vast majority of us do tend to be selfish, short-sighted, and disdainful of mental effort.

The bottom line: As bad and as frustrating as Congress can be, letting everyone vote every budget bill and approve/deny every appointment would be about 1,000 times worse. As flawed as the Constitution still is in some respects (yeah, I said it), we are damn lucky to have it. Anyone who thinks a new constitutional convention, held today, wouldn’t produce a society that was, on the whole, less free and less fair needs to spend a little time outside their immediate circle of like-minded, right-thinking friends.

This is not an argument for complacency; just for boring, frustrating, two-steps forward and one-step back (on a good day, with Democratic majorities), patient engagement with “the system,” with the hope of improving it, if only a little.

177. 177
LD50 says:

Justice Thomas is nothing if not consistent. Aside from Bush v. Gore, which is a total nightmare of a decision and a complete outlier in his jurisprudence, Thomas has a judicial philosophy that he adheres to rigidly. He’s far more consistent that Justice Scalia, who uses “originalism” to justify personal opinions that really have no basis in law or fact.

Out of curiosity, how often has Thomas ever actually disagreed with Scalia?

178. 178
Poopyman says:

@General Egali Tarian Stuck: Wow. That sums it up, except for one thing.

No apostrophe in “heros”

179. 179
180. 180
John Cole says:

No. But literally within minutes of the first post on the Kagan nomination, those of us WITH questions were bombarded with Greenwald bashing and conflation of any questions on Kagan’s bonafides with some kind of Godwining. Plus the front pagers deciding that Kagan threads really REALLY need tags like ‘Manic Progressive’ and ‘OBAMA IS WORSE THAN BUSH HE SOLD US OUT!’.

The only Kagan thread that I gave that tag to was one in which Jane Hamsher was quoted parroting Ed Whelan and emphatically stating that she would vote no on Kagan.

That isn’t “raising questions.” That’s a concerted effort to sink a nominee before anyone has even had a chance to question her. And much of the “question raising” wasn’t actually raising questions, but attempts (on both sides) to poison the well- “She hates the military!” “She hates minorities!”

You honestly must think you are dealing with fools here if you keep trying to peddle that shit. “Does Elena Kagan kill puppies in secret rituals to Satan? Hey! I’m just raising questions! Why are you trying to stifle dissent?!”

Quit wasting my damned time with this specious bullshit.

181. 181
ChockFullO'Nuts says:

Barry Goldwater was a politician. I respect his “consistency” less because it’s not about law, it’s about politics.

Yes, I get that distinction, but I don’t think it is to my point.

We “respect” somebody who is predictable, even if his product turns out to be “nuts” in the language of the post to which I responded in this subthread?

His opinion was nuts, but he stuck to his principle, and so we honor him for that? That’s where I have a problem.

That isn’t the worst of it for me. What’s worse is that the non lawyer people who root for the Thomases of the world only appear to respect his “principle” when it produces the result they want.

182. 182
General Egali Tarian Stuck says:

@Poopyman: Obviously, I am not a grammar whiz, but thanks for pointing it out. I will fix it next time:)

183. 183
liberal says:

@wrb:
IMHO there’s a much greater chance she’d shift the court to the right than Wood, who’s a known quantity. And there’s a much greater chance of a liberal’s Souter.

Furthermore, Wood has proven bona fides when it comes to swaying her colleagues on the right. Kagan’s only bona fides in that regard is collegality at HLS, plus helping put some right-wingers in professorships there.

OTOH, she’ quite a bit younger than Wood. (No snark.)

184. 184
taylormattd says:

@BTD: Oh Christ. You’ve summoned Armando again.

185. 185
burnspbesq says:

@bobbyk:

So I guess you’ve been ignoring Glenn Greenwald for the past few weeks?

No. No one here ignores Greenwald, including those of us who think he’s a dick. His “case” against Kagan fails on the merits. Or did you not see Lessig and Lithwick on Maddow last night?

186. 186
liberal says:

God bless you for bringing up California as an example of the disasters to which direct democracy can lead. I continue to be astonished by the ability of some of my fellow lefties to ignore the realities of the country we live in.

That’s the one silver lining to the disaster named CA: it’s proof that direct democracy is a bad, bad, bad idea.

187. 187
danimal says:

Newsflash: Kagan was not chosen because she has voodoo powers to make Kennedy vote liberal in 5-4 decisions. She was chosen because she reflects Obama’s vision for the court. Obama is looking past the next year or two; he’s looking to shape the court for the next few decades. Obama’s is a left-centrist Dem and he is selecting left-centrist consensus builders to shape the Supreme Court after the block of four ultra-conservatives depart.

This nomination isn’t the one Obama wants a big fight over; the stakes don’t justify the fight. Just watch the battle-royale when Thomas, Roberts, Alito or Scalia leave the court. We really could see a government shutdown for months. The GOP is keeping its’ powder relatively dry for the same reasons.

188. 188
ChockFullO'Nuts says:

@Nick:

Okay, but I can’t respect a guy’s method when he produces results that were called “nuts” in post 105. Unless, as I said, I misunderstood the post.

If I try to make an analogy, I come up with a pianist whose form is perfect, but he plays the wrong notes. Okay, I respect his form, but I really wanted to hear something like what Brahms had in mind when he wrote the piece.

189. 189
Zifnab says:

Looking at it from the legal profession perspective, however, it’s hard not to be disturbed by the potential of a Miers appointment. Say what you will about Alito, but he was a legitimate legal professional and has actual opinions on things. He comes off as a jerk, because he probably is. He’s a doctrinaire conservative. But at least he was a viable candidate

That’s like saying you’d prefer Scalia over Thomas, because Scalia has superior legal skills. And while I agree, it’s certainly nice to pick through a Scalia legal brief and not read the Thomas-esque rambling equivalent of “When I was your age, GET OFF MY LAWN!”, to claim that Alito is superior because he embraces bad legal decisions by grounding them in a broad base of bad legal research doesn’t really win me over.

At the end of the day, the voting record is what matters. An appointment of Miers to the bench could have given us a Thomas, or a Souter, or just Alito in a dress. But given Alito’s judicial track record, I’ll take the devil I don’t know.

190. 190
Nick says:

@LD50: Rarely, but even in dissent, they often disagree on why.

Lawrence v. Texas is a good example of that. Scalia’s dissent claimed Americans did want to homosexuality in their neighborhoods, while Thomas’ dissent called the law stupid, said he would repeal it in the Texas Legislature because it’s stupid, but the Constitution did not give him the authority to overturn it. I disagree with him on that, because I think the Constitution does give them the right to overturn it, but his rationale was not political, like Scalia’s was.

191. 191
Poopyman says:

@General Egali Tarian Stuck: Dude, it’s your distilled wisdom. I just want you to have it perfect.

192. 192
slippy says:

@Punchy:

The stakes wouldn’t be so damn high if the Court actually had some intellectual credibility.

Second that. I just watched “Lord of War” again last night, which if you haven’t seen it is a somewhat light-toned expose of the arms trade . . . at one point Nicholas Cage’s character is being lectured by a Liberian warlord about the “Kangaroo court” decision of 2000, and he is told that “now, the United States must shut up forever.”

I wish someone could grab these fools (including O’Connor) by the lapels and EXPLAIN to them just how much damage they did to our nation with that one completely indefensible ruling.

193. 193
ChockFullO'Nuts says:

Exactly right.

194. 194
mr. whipple says:

I just am sick and tired of battles to the death, with the battle lines drawn instantly and with no wavering. It is no wonder so many people just pay no attention to politics whatsoever.

This is exactly what I felt about HCR. I had to turn off the cable heads, while still paying some attention and doing the necessary calling and letter writing. It’s just too exhausting otherwise.

195. 195

@Zifnab:

However, it’s magical thinking to believe a freshman justice twenty years his junior is going swing his vote with any regularity.

It’s not really magical. If Kagan is a consensus builder as originally thought, there is at least one justice who had similar bonafides who had some success in that regard – Earl Warren.

“He did not possess a great legal mind, but the Court had more than enough of those already. The task that confronted the new chief justice was more political than judicial, so it was perhaps fortunate that he came to it from a career in politics.” – Michal Belknap, The Supreme Court Under Earl Warren

Warren entered the Court after the first round of oral argument in Brown. At the time, Frankfurter, who favored desegregation, was so concerned about judicial restraint that he felt he couldn’t cast a vote to break down a “political question” without some Fourteenth Amendment history. Jackson was positioned to write a concurring opinion from his hospital bed that apparently was twenty pages of hemming and hawing followed by a positive vote. And Reed, a Kentuckian, had scrawled out a handwritten dissent before the straw vote.

Warren, the politician, managed to allay Frankfurter’s concerns about legislative history, visited Jackson at his bedside and used some of his reasoning, and took Reed out to informal lunches repeatedly. They all caved, so instead of an 8-1 decision with a majority joined by 7, a concurrence by 1 and a dissent that would have given segregationists actual legal arguments, we had a unanimous opinion that theoretically strengthened the institution as a whole and insulated it from worse criticism than it would face.

Moral? Consensus builders achieve their stated goals.

196. 196
slippy says:

@danimal:

The GOP is keeping its’ powder relatively dry

Could have fooled me. The racist freak-out over Sotomayor was anything but dry powder.

197. 197
norbizness says:

I will admit that the Sullivan/Brooks line of opposition has made me support her a little more. What useless, misogynist assbags.

198. 198
Librarian says:

Let’s get one thing clear: Sullivan and Brooks are attacking Kagan for being one of those “liberal elites” who supposedly run everything behind the scenes and oppress and persecute those poor, downtrodden conservatives. I’m not buying any of their bullshit. Their attacks, actually, make me feel better about Kagan. Maybe a member of the liberal elites is just what the the Supreme Court needs.

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NobodySpecial says:

You honestly must think you are dealing with fools here if you keep trying to peddle that shit.

Oh, there are certainly some fools on this board, both sides. But, funny thing – I don’t remember any regular poster on this board actually agreeing with Hamsher. What I DO remember is a lot of the Purity Police acting like anyone who didn’t like this nomination for whatever reason was conflating Obama or Kagan with Hitler and calling her the worst pick ever OMGZ, paired with the occasional circle jerk about ponies and rainbows. Oh, yes, and Glenn Greenwald is a jumped-up ambulance chaser, too. That’s a concerted effort to shut down any debate about a nominee, and it’s just as odious as the obvious trolls against the nomination.

200. 200
wrb says:

@liberal:

Second, I think this pick accurately reflects Obama’s refusal to pick a fight he could absolutely win by choosing a more liberal candidate

Read it as you will. My read has been moving in the other direction as I’ve learned more her and studied statements from people who know her. Some very liberal knowledgeable people seem very pleased with this pick.

But as I said I don’t know, I just enjoy setting and adjusting odds and then seeing how close I come.

201. 201
Zifnab says:

Quit wasting my damned time with this specious bullshit.

/hug

It looks like you needed that.

202. 202
Martin says:

@NobodySpecial: No, you’re being sold steak, just not in the package you want it in. You’re hung up on the notion that there should be some circuit decision you can look back on for comfort regarding her views. That has nothing to do with who she is and everything to do with how you want the marketing campaign to operate to make you feel good about the decision.

I’m not saying that Kagan is the most liberal choice. I’m saying that you lack the evidence to demonstrate that she’s not as liberal as Wood. Most of the people out there are saying that the lack of evidence is proof she’s not liberal. Folks like Lessig have known her personally for years and say that she is very liberal. Nobody has even tried to refute the support of her colleagues, except to say that Obama is making a cowardly pick.

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General Egali Tarian Stuck says:

@Poopyman: Don’t know if it’s wisdom, but it helps me stay sane, or reasonably sane, that is.

204. 204
Bill Section 147 says:

John,
I’ve come to the sad realization that you did not start this blog to kiss my ass. Your insistence that my blurting out unsubstantive, angry remarks with, or without, all-caps is not actually one side of an argument to which you must respond shows your hatred of democracy and your disdain for true and unfettered discussion – as well as a total disregard for the reason I wanted you to start this blog.

Rest assured as soon as I find a blog that fills my vacancy I will comment there instead. Verily.

205. 205
ChockFullO'Nuts says:

That’s a concerted effort to shut down any debate about a nominee

Alright, so what is the correctly framed debate about this nominee, and, isn’t it too early to be framing that debate? We haven’t had a chance to really talk to the nominee yet.

206. 206
Bill E Pilgrim says:

@Nick:

because the armies of the left won’t fight the right. Why would anyone lead an army whom you’re not sure will actually follow you into battle?

Yeah except we got him elected.

I don’t mean the Left got him elected, I mean the non-Right got him elected. For once, the whole freaking place came together and accomplished something, which I attribute to finally having George W Bush just so discredit anything Republican that I started to believe Tom Tomorrow’s cartoon about him being a secret Yippie mole.

Or because McCain and the soon-to-be failed Governor were comically weird. Who knows.

But I also attribute it to one huge push where people actually put all that aside, for once in a blue moon, and did it. In other words I pretty much agree but that was an exception.

I know, I was there, I returned to the bleeping country for it, basically. It was a sight to see.

Now I’ve left again, to where I had lived since Clinton was President, and the whole place goes to pieces.

I swear I can’t leave you people alone for even a minute.

207. 207
Ash Can says:

@taylormattd: Don’t you love how a post deploring all the interminable pants-crapping results in a thread full of — you guessed it — interminable pants-crapping?

208. 208
eemom says:

Over at Salon, Greenwald is throwing tantrums like a nap-deprived toddler over Lessig’s smackdown. Tee hee.

209. 209
Zifnab says:

That’s a concerted effort to shut down any debate about a nominee, and it’s just as odious as the obvious trolls against the nomination.

Debate on what? The general consensus is that the woman is a blank slate. Her legal history is thin. Her professional history is enigmatic. She hasn’t been questioned yet, or seriously vetted by anyone outside the White House.

Greenwald holds to the belief that, because she was Obama’s SG, she must agree with everything he’s had her enforce. Hampher went sour on the Obama Administration when the Public Option was dropped and hasn’t looked back since. And anyone on the right wing blogs leans toward “disingenuous critic” at the best of times.

So far, these are the loudest opponents of Kagan.

And that’s who John was responding towards. So what’s your freak’n problem?

210. 210
Lynn says:

Thanks, John, for bringing some sanity to this topic. I find I break with my fellow progressives over the need for collegiality. I like the idea that we might have someone on the Court who can listen to all sides and understand their arguments enough to know how to bring them over. She seems like this person and I am already dreaming of how she might wind up as Chief Justice one day.

211. 211
NobodySpecial says:

@danimal:

This nomination isn’t the one Obama wants a big fight over; the stakes don’t justify the fight. Just watch the battle-royale when Thomas, Roberts, Alito or Scalia leave the court. We really could see a government shutdown for months. The GOP is keeping its’ powder relatively dry for the same reasons.

Except, of course, that that’s not likely to happen on Obama’s watch, which makes this appointment either a give-up or a non-critical choice (in admitting that Kennedy is unlikely to be swayed, and therefore the court stays 5-4 conservative for the next 20 years) IF you don’t believe she’s there to influence Kennedy.

For what it’s worth, I think Obama might feel that she’ll be a good choice to sway Kennedy – but a lot of people (including me) aren’t willing to trust that happens just because Obama likes her.

212. 212
taylormattd says:

@Ash Can: it’s inevitable. The left wing blogosphere is ruled by people that pretty much hate Obama, always have, and view literally every decision he makes as a stab in the back to progressives. John is exhausted in this post, but many of us became exhausted back in 2007.

213. 213
LD50 says:

@slag:

‘Kay. What a douchey ending to an almost valid point.

‘Douchy’?

It wasn’t addressed to you specifically, it was intended to forestall someone from seeing me mention leftists and Marxists in the same post and scream “WHAT ARE YOU CALLING LIBERALS COMMIES????”

214. 214
taylormattd says:

@Zifnab: “Hampher went sour on the Obama Administration when the Public Option was dropped and hasn’t looked back since. ”

Not accurate. She hated his guts during the primary. FDL was a quasi-PUMA site.

215. 215
Nick says:

Yeah except we got him elected.

which is apparently where the left seems to think it ends. The problem with this is there are people who got him elected who are now either uninterested or falling into the teaparty bullshit. The right understands elections are the beginning, the left treats them like they’re the end.

Alright Mr. Obama, we voted, now you fight while we sit around and nitpick.

216. 216
danimal says:

Slippy, I threw in the word relatively for that reason. The wingnuts will fight any Obama nomination. We didn’t see a filibuster with Sotomayor (and won’t with Kagan, either) because replacing a liberal vote with a liberal vote doesn’t reshape the court. Replacing one of the four conservatives will be a battle as big as health care reform.

217. 217
t jasper parnell says:

@BTD: You are, as usual, off the mark. The criticism is not the having and expressing an opinion; rather, it is the transformation of each opinion making event into the beast of the apocalypso, which — while as evil as the beast of the apocalypse — is more rhythmic.

218. 218
eemom says:

@wrb:

As I’ve said before, Kagan graduated from HCHS three years before I did, and I have it on good authority that she really is fucking brilliant.

Also, for reasons that I don’t expect anybody to understand or accept, I know that she can’t possibly be anything other than a principled liberal at heart.

Were it not for the tsunami of toxic bullshit spewing at her from both sides, therefore, I could enjoy this nomination in peace.

219. 219
Gregory says:

So rave on

It’s a crazy feeling.

220. 220
Lisa says:

@Nick: Word to your motherfucking mother. Say that shit again, Sam.

221. 221
LD50 says:

@slippy:

I wish someone could grab these fools (including O’Connor) by the lapels and EXPLAIN to them just how much damage they did to our nation with that one completely indefensible ruling.

Honestly? I doubt they care, and I suspect they’d do it again given half a chance.

222. 222
wrb says:

I suspect it was when Janesisus caught a glimpse of her reflection in the Fire Lake of Petulance

223. 223
NobodySpecial says:

@Martin: I’m simply one of those people from Missouri, I’m afraid. We’ve seen what happened with the last ‘blank slate’ appointee, and I’m not in any way comforted by the belief that all SC justices automatically move more liberal as the years go by. With Wood having a track record, that makes her more appealing to me as a nominee. Doesn’t mean Kagan is Hitler, but given the stakes (by which I mean that Kagan will probably be deciding the law for the rest of my natural life), I want more than ‘She’s really good at getting people to work together, trust me!’ and ‘She’s really a good liberal, trust me!’

At one point not too long ago, the convential wisdom was that Joe Lieberman was a reliable liberal on almost everything whom Barack Obama placed trust in. Once bitten, twice shy.

224. 224
Martin says:

@Zifnab:

The general consensus is that the woman is a blank slate. Her legal history is thin. Her professional history is enigmatic. She hasn’t been questioned yet, or seriously vetted by anyone outside the White House.

No, the consensus is that there is little information *in the places everyone wants to look*. There’s lots of information on her, but it’s not going to come out of circuit court rulings, and it’s not going to be as supposedly black and white as a written opinion. It’s also going to be harder to differentiate her work acting on behalf of the government and how she would rule as a judge, but that doesn’t mean that there’s no information. Everyone simply wants the easy answer, and there isn’t one here. I don’t think laziness should be the basis of opposition for a candidate.

225. 225
Nick says:

but a lot of people (including me) aren’t willing to trust that happens just because Obama likes her.

He gets the make the decision. that what we elected him to do, appoint a justice he trusts and likes, If you can’t trust his judgement about her, how do you trust his judgement on Diane Wood or Pam Karlan? And don’t say because they have “proven records of being progressive” because so does Kagan, and having a proven record means nothing on how they perform on the court, for evidence see; David Souter, Earl Warren, John Paul Stevens, Byron White, Antonin Scalia, Harlan Fiske Stone…all of whom were a different SCOTUS Justice than their past records indicated they would be…Souter, Warren, Stevens and Stone far more liberal, while Scalia and White became far more conservative.

People like you and Glenn Greenwald should freaking run for President yourselves.

226. 226
slippy says:

@Librarian: Oh yes. If Brooks is panty-bound I am an immediate Kagan fan. No doubt about it. Anything to put a pouty tear on his widdle cheek.

227. 227
JMY says:

If I’m not mistaken, there were even people who did not think Wood was liberal enough or was it just her age?

228. 228
LD50 says:

@Nick:

The reason he isn’t over here on the left is that the left is irrelevant, they’re too small, too politically weak, and too inept to really make any noise, in part because they refuse, flat out refuse, to fight the teabaggers

Won’t *fight* the teabaggers? A hardcore, 24/7, leftist, ‘Obama is no better than Bush’ friend of mine, a woman who is otherwise one of the smartest, funniest people I know, recently send me an email about some sort of ‘outreach’ that Code Pink is doing where they’re approaching the Tea Party of her state in hopes of finding ‘common ground’ in cutting military spending. That is, they’re taking the Baggers ‘anti-govt. spending’ posturing seriously, as tho it’s both thought out and sincere, and trying to convince them to start opposing military spending as part of their general anti-spending stance. And she honestly thinks it might work. The whole idea is fucking naive and ridiculous in more ways than I can count, but it speaks volumes to why the hard left in America never gets anywhere.

229. 229
Nick says:

@JMY: There was a diarist on DailyKos who said she was a moderate…but once she got the Glenn Greenwald seal of approval, she could’ve supported public beheadings with no trial and she still would’ve become the golden calf of the left.

230. 230
mey says:

I’m with Al Giordano on this: http://narcosphere.narconews.c.....sive-kagan. And I like Glenn Greenwald. Hamsher, not so much.

231. 231
LD50 says:

@slag:

But sparky’s right. The point is applicable to almost everyone. “Don’t try so hard because you’re already a big failure” is not likely to be making the rounds at motivational seminars these days.

If that’s how you read my message, then that confirms you didn’t understand it. Oh well.

232. 232
IndieTarheel says:

@General Egali Tarian Stuck: Hell yes, THIS. We already have the neeping and nopping from the usual suspects (and already knew this was coming; there’s audio and everything). Republicans are determined to rule the land whether they win elections or not, and they (and their enablers in the media) are hereby cordially invited to STFU.
__
\end rant

233. 233
Alex S. says:

Run for congress.

234. 234
Nick says:

@LD50: Code Pink is a class all their own. I wouldn’t even consider them part of the left spectrum.

235. 235
BTD says:

Well, whatever John’s intention. I think the solution is simple for all of you, ignore the Kagan nomination discussion in its entirety.

That way no one here needs to be annoyed because someone has an opinion.

236. 236
JMY says:

@mey:

Wow, he to Cenk Uygur to school.

237. 237
JMY says:

@mey:

Wow, he took Cenk Uygur to school.

238. 238
NobodySpecial says:

@Nick:

Sorry, man, can’t do it. The whole ‘death penalty for jaywalkers’ just doesn’t play well enough on CNN for me to consider a run.

Seriously, though, this isn’t about rainbows and puppies and shit like that. This is Roe v. Wade and a whole host of other decisions at a moment when the court is swaying to the right. And like I said in another post, this pick sits on the bench for the rest of my natural life. I would really hate to see an anti-Souter size screwup.

239. 239
t jasper parnell says:

@BTD: This is, to make the same point slightly differently, not the issue. It is the amping up of the discussion to where a nominee for the SC who appears on the face of things to be reliably liberal, although not necessarily on the Left, is transformed into a stealth candidate and Obama’s has stabbed everyone in the back again. It is, in other words, not the having of an opinion but the increased conviction on the part of the opiners that each event is the end of the world as we know it. And, I would suggest, there is in Cole’s argument the implicit suggestion that it is this kind of end times bullshit that is making it impossible to have a reasonable chin wag about the pluses and minuses of this candidate or the daily whatever.

240. 240
Nick says:

I would really hate to see an anti-Souter size screwup

We would all hate to see an anti-Souter sized screwup but appointing someone with a proven record doesn’t guarantee that record will continue on SCOTUS. Souter is the perfect example of that. Arch-conservative former New Hampshire AG/First Circuit Judge turned out to be a liberal SCOTUS.

Whoever gets chosen is a leap of faith. Maybe Diane Wood told Obama her record on the appellate court doesn’t necessarily translate to how she’ll vote on SCOTUS…many nominees have, from Souter to Roberts to Sotomayor have all said that in their confirmation hearings.

241. 241
Tom Hilton says:

John’s weariness at all the acrimony brings up a point that I rarely see anyone on the left acknowledge: that acrimony helps the right. The more acrimonious politics gets, the less faith people have in politics as a whole, regardless of who’s responsible for the acrimony. Government, of course, is an extension of politics. The more people are turned off by politics, the less faith they have in government.

When Greenwald or Hamsher turn the poutrage up to 11, they may think they’re countering the right’s ragegasm, but in fact they’re aiding and abetting it.

The only way to restore faith in government–which is the threshhold requirement for any kind of progressive revival–is to govern, and govern well. Yelling louder just undermines that goal. That’s what the President understands, and most progressives don’t.

242. 242
Bill E Pilgrim says:

@Nick: Oh give it a break. I was trying to gently chide you for making the blanket statements about how the left “never” does anything and just gripes.

The right, whom you acknowledge are in control, didn’t get that way by shutting up. The idea that Greenwald, or anyone I can logically call “the left”, John here, for that matter, “doesn’t fight” the right is utter nonsense.

Obama campaigned on certain things and he’s being yelled at to keep to that more closely. There’s nothing wrong with that. And anyone who wants to start with “No he didn’t” all you have to do is look at his “drill baby drill” era which I think lasted three weeks.

It doesn’t mean you vote for Ralph Nader, you vote for Obama, just as you did last time. However speaking up, trying to move things away from the far right, that’s not only valid, it’s essential.

Debate is good, but enough with the disingenuous preaching please.

243. 243
Belafon (formerly anonevent) says:

@BTD: Since you’re not a Republican, the question I have for you is how is she the worst, most conservative choice that has ever been picked by anyone ever?

244. 244
You Don't Say says:

Anyone watch Charlie Rose last night? An attorney he had on made the point that a judge farther to the left would actually be less effective at moving the court to the left than someone just left of center because it is an institution whose members must be persuaded. He said it is not a seesaw that is balanced out by righties on one side and lefties on the other.

Also, I think this nomination may have turned me off from Andrew Sullivan for good.

245. 245
Nick says:

The idea that Greenwald, or anyone I can logically call “the left”, John here, for that matter, “doesn’t fight” the Wingnut right is utter nonsense.

I have yet to see Glenn really take on the right, he far more often bitches that Obama isn’t doing it, and when Obama does do it, Glenn then bitches he’s not being aggressive enough.

246. 246
eemom says:

@mey:

thanks for that link. Great stuff.

Guys like Solomon and probably Uygur (the jury is still out on the latter) are a bit distinct from pond scum like Greenwald and Hamsher, who are only in it for their own protagonist careers. The former are more akin to those fans in the bleachers always screaming at the quarterback to throw the long ball even against teams skilled at interceptions.

Meanwhile, the new star quarterback keeps controlling the ball, marching the team downfield, winning first downs every ten yards, and the Kagan confirmation is another touchdown that soon will happen. And then Obama’s second draft pick for the US Supreme Court can begin tag-teaming Justice Kennedy along with Justice Sotomayor and concretely move the Court to the left.

Thus, those who claim that the Kagan nomination “moves the court to the right” reveal only their gross ignorance about the dynamics of the US Supreme Court in the present day. And the unflappable head-coach-in-chief is absolutely correct to ignore the cat-calls from the armchair quarterbacks in the bleachers who have never won a game, and thus have no idea how it is really done.

247. 247
eemom says:

block quote FAIL : (

248. 248
LD50 says:

@Nick:

I have yet to see Glenn really take on the right

That is absolutely not how I remember him acting during the Bush years, tho I admit I haven’t paid much attention to him since Obama’s election.

249. 249

@LD50:

Out of curiosity, how often has Thomas ever actually disagreed with Scalia?

Define disagreement. They often come out on the same side of a case. How they get there is often times markedly different. They have, at times, been on opposite sides of rulings.

250. 250
Lisa says:

@t jasper parnell: I love you for that. I can’t stop laughing. Does this beast do the Rivers of Blood Tango?

251. 251
Bill E Pilgrim says:

@Nick: Really. So you’ve never seen him write a column about, say, David Brooks.

Being clear that I’m carefully choosing him because you’re complaining that people fighting against “tea baggers” is just nonsense, so okay, here’s someone seen as a moderate right winger. And he certainly is that, in fact Greenwald’s exposes of his past with the right wing magazines has helped a lot of people see through the moderate pose he strikes now.

There are many more examples, Greenwald has taken on the right countless times, and the fact that you’ve missed that speaks more than I can get into here.

252. 252
Nick says:

@You Don’t Say: Well that’s true…anyone who’s actually toured the Supreme Court has seen that the justices spend much of their time almost sequestered in the building….they have a private dining room, a private gym, everything.

The entire judicial branch of government works on persuasion. That’s why we have prosecutors and lawyers making their case before a judge. Often judges make rulings they disagree on because they have NOT been persuaded enough. That’s how it works. In order for our judicial system to work, judges need to go into court cases without an opinion already formed. Moist do do this, especially on the left, which is why having a paper trail like Diane Wood does not mean she’ll be a solid liberal vote.

253. 253
t jasper parnell says:

@Adam Collyer: According to this from this longer discussion Scalia and Thomas vote together over 90% of the time, which is pretty remarkable.

254. 254
t jasper parnell says:

@Lisa: Thanks and yes.

255. 255
BTD says:

I love questions like these because they demonstrate the problem precisely.

I happen to be writing in support of Kagan, but also calling for forthcoming answers during her confirmation hearings because the record of her public views are sparse.

My INTUITION is that in fact Kagan will be a conventional Center Left Justice, somewhere between Breyer and Ginsburg. But my intuition should not be enough for the Senate. I have long argued (see my posts on Roberts and Alito that stonewalling nominees should not be confirmed by the Senate no matter what their ideology. Advice and Consent does not mean rubberstamp.

I think some of the critiques of Kagan, by Greenwald and Turley especially or just plain wrong. I just posted this at my site – Kagan’s Public Record Does Not Not Demonstrate She Will Be To The Right Of Stevens:

President Obama has decided to nominate someone who is demonstrably more conservative than [Justice Stevens] on some issues [. . .]

Turley refers specifically to Kagan’s stated views on preventive detention and designation of enemy combatants. I think Turley’s claim is inaccurate. Whether one agrees with Kagan’s views on the matter, what is clear is that Kagan’s stated views do not diverge from Justice Stevens’ stated views on this issue. To understand this point, it is necessary to review Justice Stevens’ opinion in Hamdan v. Rumsfled and the dissenting opinion of Justice Scalia, which Justice Stevens joined in Hamdi v. Rumsfeld. Let’s consider these opinions on the flip.

I laugh a bit when I see someone above extolling Al Giordano’s substance free “defense” of Kagan. I do not know who Al is supposed to be persuading with that tripe, but certainly it should not convince any thinking person.

Kagan will be her own best witness I believe in her confirmation hearings. I expect she will be more forthcoming than most nominees. I expect her answers will satisfy a lot of concerns.

But it is silly in my view to pretend that Kagan’s record answers all the concerns people have expressed.

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BTD says:

@BTD:

The coding screwed up on that comment. This is also from my post:

“President Obama has decided to nominate someone who is demonstrably more conservative than [Justice Stevens] on some issues [. . .]

Turley refers specifically to Kagan’s stated views on preventive detention and designation of enemy combatants. I think Turley’s claim is inaccurate. Whether one agrees with Kagan’s views on the matter, what is clear is that Kagan’s stated views do not diverge from Justice Stevens’ stated views on this issue. To understand this point, it is necessary to review Justice Stevens’ opinion in Hamdan v. Rumsfled and the dissenting opinion of Justice Scalia, which Justice Stevens joined in Hamdi v. Rumsfeld. Let’s consider these opinions on the flip.”

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Nick says:

@Bill E Pilgrim: David Brooks isn’t sprewing right wing lies…David Brooks is sprewing that we need to compromise with right wing lies. Taking on Brooks is good and all, but I have yet to see Glenn right take it to the teabaggers the way he wants the President to.

And furthermore, there’s another problem with Glenn. He recognizes the problem the left has with the media, and the media’s insistence on parroting right wing talking points and yet he’s shocked when progressives don’t win message wars. How tone deaf is he?

People like Glenn are interested in one thing…fighting. He wants to be a spectator to an endless political battle. I din’t vote for someone who will spent four to eight years fighting with no end in sight. I don’t think the rest of the country did either.

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BTD says:

This is not accurate imo. You wrote:

“This is, to make the same point slightly differently, not the issue. It is the amping up of the discussion to where a nominee for the SC who appears on the face of things to be reliably liberal, although not necessarily on the Left, is transformed into a stealth candidate

On the public record, on the face of things, as you put it, Kagan is largely a blank slate. My INTUITION is that she is in fact reliably center Left and I expect to support her after the hearings.

As for this — ” Obama’s has stabbed everyone in the back again.” This is just silly stuff from silly people. Obama stabbed no one in the back. He chose the person he wanted to choose. As President that is his right. But people also have the right to criticize his choice and the Senate has the right to ask for forthcoming answers from her.

I have been defending Kagan a lot from what I believe are inaccurate criticisms, most recently from Greenwald and Turley.

But juvenile attacks on them of the type provided by Giordano and lauded in this thread are silly, unpersuasive and pointless.

It took me 1250 words to rebut them, but I think my efforts were much more effective than Giordano’s pointless name calling.

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Sentient Puddle says:

I discovered that I was tired of the whole Kagan story last night. Anyone paying attention can game out how the rest of the process goes…she’s nominated, some on the left celebrate, some don’t, the right tries to dredge up some controversy to sink her, fail, she gets confirmed, and everybody will end up content and forget about any sort of doubts or controversies she had. Because honestly, who the fuck today cares that Sotomayor called herself a wise Latina? The only real variable that we don’t know is the exact nature of the whining. I think I can do without knowing that.

Me, I’d normally wish that all the media attention were on something more important, say, financial reform. But then I realize that everybody would just focus on that whole audit the Fed bullshit, and then we’re working at pretty much the same substantive level as Supreme Court pissery.

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burnspbesq says:

That’s a concerted effort to shut down any debate about a nominee

Nonsense. This isn’t antitrust law – there’s no doctrine of conscious parallelism in play. If you feel like people are ganging up to shout you down, perhaps your quest for the reasons why should start with some basic self-awareness. You are always among the first to go ad hominem, and then you seem shocked when people respond in kind. Actions have consequences, and nobody gets a free pass.

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You Don't Say says:

I see I’m not the only one who has had it with Sullivan: http://www.thenation.com/blog/.....mailNation

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slippy says:

@danimal: Yeah, but by then their freak-outs will be so regular and unhinged that the majority of the electorate, at least, will be deaf to their pleas. I mean, I think it’s already happened. HCR passed right through their cold, dead fingers.

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prairie logic says:

A-F’in-Men. My sentiments exactly.

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ruemara says:

@Zifnab:

But, as it stands, the vast majority of “bad” SCOTUS decisions end in 5-4 rulings. What are the Greenwalds and the Hamphers looking for? Make one of those dissenting 4s a Super Dooper No rather than your regular old No?

Would you believe that Jonathon Alter said he would prefer a loser vote than a centrist? This is the problem we have. Armchair philosophers offering purity of thought tests who’d rather see government, sensible government, fail it does not align with their respective Randian or Chomskiesque Utopia.

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Bruce (formerly Steve S.) says:

I just am sick and tired of battles to the death, with the battle lines drawn instantly and with no wavering.

You’re in the wrong line of work.

So I guess this means you won’t be dismissing people who disagree with you as being consumed by “deep-seated hatred”.

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John Cole says:

Shrug- I’ve read Glenn’s stuff, and I find his basic point hard to disagree with- she is a blank slate and we should know more about her. I also think she has opened herself by backtracking from her 95 commitment to lively hearings.

Although I think Glenn fails to realize why we are getting blank slates. Precisely because anyone who says anythign remotely controversial or demonstrates any original thought is met by people screaming she is the most awful person ever and must be defeated and please send money to defeat this horrible candidate and so on…

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LD50 says:

@t jasper parnell: That actually answers my question. Sometimes I’ve gotten the impression that if Thomas doesn’t have strong feelings about a case, he just peeks over Scalia’s shoulder to see how he’s voting, and goes with that.

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t jasper parnell says:

@BTD: Perhaps it is just me being naive now, as Michael accused Kay of being, but a woman who worked in the last two Democratic administrations and who is nominated by a liberal sitting Democratic president is, on the face of things, a reliable liberal. Personally, I wish both Clinton and Obama governed from their left; but, I see no reason that either would have hired and nominated someone who wasn’t reliable liberal.

ETA: your point about the silly people sillily saying silly things supports the larger argument, no?

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tillkan says:

I object to the idea that left opposition to Obama comes mostly from Clinton supporters. Here in Kansas us lefties all supported Obama, along with 72% of the primary voters. The only Clinton supporters I knew were wimpy centrist liberals, and they now support anything Obama does.

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Midnight Marauder says:

@BTD:

Well, whatever John’s intention. I think the solution is simple for all of you, ignore the Kagan nomination discussion in its entirety.
__
That way no one here needs to be annoyed because someone has an opinion.

The point. It went the other way.

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taylormattd says:

@tillkan: That’s true in the population at large, but please remember, the blogs have nothing to do with the population at large, and have no connection to real life. And these people by and large were (1) hardcore Edbots; (2) Clinton supporters; and / or (3) PUMAs and quasi-PUMAs.

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BTD says:

That is intuitive, not demonstrated is my point.

Some simple declarative sentences from Kagan ather confirmation hearing will likely resolve the matter it seems to me.

For example, saying she agrees with say Brown, Griswold, Casey and Dickerson.

Does she? Almost certainly, But if she says she does, then we can have express evidence of that.

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Bobby Thomson says:

I mean, this is another area where Glenn has just flatly misstated the case. In his piece on “Democracy Now” on April 13th, he said that in that article she talked about the power of the president to indefinitely detain anyone around the world. Now, that article was written before George Bush, before 9/11 and before George Bush articulated anything about this power.

It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated is kind of uber-power of unitary executive was nowhere even hinted at in Elena‘s article.

So in other words, it was OK to be all “Unitary Presidency – Fuck, yeah!” before George W. Bush adopted policies that weren’t to your liking?

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Brachiator says:

@Martin:

No, the consensus is that there is little information in the places everyone wants to look. There’s lots of information on her, but it’s not going to come out of circuit court rulings, and it’s not going to be as supposedly black and white as a written opinion.

You make an excellent point here. In post after post, people have keep making three ridiculous assertions: that Kagan is a blank slate; that a centrist like Obama is duty bound to appoint a certified liberal to a court, and that Glen Greenwald is to be taken seriously.

The only possible thing of value that might come out of the judiciary hearings, and the only thing that could possibly be meaningful, is some sense of Kagan’s judicial philosophy. Even had she been a trial judge with a long paper trail, this would not reliably tell us much about how she might rule as a Supreme Court Justice.

Maybe all this hand-wringing is another example of post 9/11 malaise. Not giving a rat’s ass about the complex job that a Supreme Court justice must do, some people are less interested in competence and fairness than they are in making sure that their fears are catered to.

Those who think that a Liberal(tm) label is some kind of guarantee of quality or purity aren’t much different from fundamentalists who believe that a politician who has been born again will magically be the best president or Congress critter ever.

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BTD says:

What point? What way?

Are you saying it was John’s point that we should ignore his posts if they annoy us?

I think that is YOUR idea, not John’s.

MY point is John does not have to have an opinion on Kagan and he can safely ignore all the stuff and not have any annoyances.

I did not say that John’s post annoyed me. I said that I thought John’s post was wrong headed.

You see, I do not get annoyed with opinions I disagree with. In fact, sometimes I think they are interesting and worthy of considering.

But let’s not mince words here. You did not like me expressing my opinion. That is what you meant.

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Bobby Thomson says:

Fine.

Primary him or STFU. Obama is governing exactly as anyone who followed his rise and read his books expected him to. He is who he is. If you don’t like it, then come up with an alternative.

Or, in the alternative, I could express my opinions on a website devoted to political commentary and you could disagree with them. Or you could just kiss my fat ass if that arrangement isn’t acceptable.

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sgrAstar says:

I’m kicking myself for reading this entire thread instead of working, gardening, walking the dog…. Cole, this is why we all love BJ so much. Great post and great, mostly thoughtful responses by all.

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TuiMel says:

@MattF:
The Republican Party in the state of my birth goes off the rails. My bro still lives there and has been more active than the average bear in party activities. If I had any energy for the argument that would ensue, I would ask him about this stuff. People are under stress, and they want to blame someone (thing) other than the people they elected to national office for the policies that brought on a lot of the hurt.

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Bobby Thomson says:

@Nick:

yeah that’s why he renominated her when the Senate tossed her back to him.

Yeah, for all of a few weeks. While not expending a single bit of political capital on it at all.

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t jasper parnell says:

@BTD: This is almost minor matter but since, as is usually the case, you fail to understand the point your interlocutor, in this case me, is making, I’ll try again. The various facts about Kagan’s career I mentioned are facts of the matter and coming up with a conclusion concerning her evident liberalism based on those facts of the matter isn’t an intuition, which is — generally speaking — a conclusion based on gut feelings, it is a reasonable conclusion. GG’s anti Kagan stuff fails to convince me and your arguments, because you so often misapprehend the arguments others make and the facts on which those arguments rest, don’t interest me.

Have a nice day and keep the Aspidistra flying.

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Midnight Marauder says:

@BTD:

Are you saying it was John’s point that we should ignore his posts if they annoy us?

No.

MY point is John does not have to have an opinion on Kagan and he can safely ignore all the stuff and not have any annoyances.

And again, this response is on an entirely different track than the one John’s point is on. Hence, the “missing it” part.

I did not say that John’s post annoyed me. I said that I thought John’s post was wrong headed.

…While also generalizing the entire discussion here as being filled with people who are “annoyed because someone has an opinion.” You don’t not get to pontificate while simultaneously mischaracterizing the discussion and your opposition.

But let’s not mince words here. You did not like me expressing my opinion. That is what you meant.

Nope. Just pointing out that you missed the crux of what John was saying. That is what I meant.

Which is why I fucking said that and ONLY that.

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BTD says:

The facts you have are that Kagan worked for 2 Dem Administrations.

The facts you do not have are express views on certain issues by Kagan.

You deduce from 1 that you have demonstrated facts about 2.

That is faulty logic imo.

This is the difference between circumstantial evidence and direct evidence.

You are comfortable with the circumstantial evidence. I am too. But I would like direct evidence to buttress the circumstantial evidence. BTW, this is a consistent position for me. I held it for Roberts and Alito as well.

The rest of your comment is pointless ad hominem that does not require a response.

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BTD says:

Well, since you are not John Cole, I think I’ll reserve judgment on what “the point” of John’s post was. Perhaps he will now adopt your reasoning, such as it is.

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Nick says:

@Bobby Thomson: Renominating her IS spending political capital on her…unless of course you want a months-long endless fight during an economic crisis over a low-level political appointee no one cares about.

And if any one of you guys would like to take a few minutes to tell me why it was ok for Johnsen to support indefinite detentions, but for Kagan it makes her Scalia in a skirt, I’m ready to listen.

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asiangrrlMN says:

@Midnight Marauder: You made me laugh with your previous post (the point one), and you were spot-on, so thank you for that.

Cole, I could have written this post, but not nearly so angrily eloquently. Thanks. As I have stated before, I don’t mind a discussion as to the merits of Kagan v., say, Wood–I just loathe the ‘Kagan is a flaming conservative in sheep’s clothing’ meme that has emerged. I have questions about Kagan’s nomination, but from what I’ve read thus far, I am mostly satisfied with her as a pick.

I think the other thing that bothers me about these debates is that there is no convincing the other side. I watched GG on Maddow (and I actually thought Maddow was leaning against the Kagan pick), and new info didn’t change his mind one iota. He had a narrative, so all new info had to be warped to fit that narrative.

Like Cole, show me something substantive to make me not support Kagan, and I will consider it. Talks of her being a blank slate and a secret conservative are not good enough.

@Nick: Because, shut up, that’s why! I’ve been asking that question, too, to no avail. And, I like the fact that anything Obama does that is remotely progressive doesn’t spend any political capital.

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t jasper parnell says:

@BTD: No its not ad hominem. I said, you usually misunderstand the point people make, as MM shows, and that consequently your arguments don’t interest me. I didn’t say you are fat and consequently your arguments don’t interest me. One is a conclusion based on the evidence and the other is an ad hominem attack.

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BTD says:

Ok Jasper. Whatever you say. I take it you will be skipping the Kagan hearings as there is nothing you feel you will learn from them about Kagan.

Sheesh.

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Mnemosyne says:

@mey:

Ouch. That was one hell of a spanking:

I’m sorry to say it, because I think it is almost unconscious on Solomon’s part, but he displays more of a nostalgia for when progressives lost every single battle but at least he and some college educated colleagues got to call themselves the faces of American progressivism – a mantle that in the age of Obama they can no longer claim. And from that font gushes all the resentment and frustration. The rest is just window dressing and pretexts for another column.

(Emphasis mine, because I really think that’s the heart of the conflict.)

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t jasper parnell says:

@BTD: Sheesh, your own damn self. I said nothing like that. This last comment by you is an example of why I don’t have any interest in your arguments. You fail to correct your error, concerning ad hominem, and then leap to a conclusion about my likely behavior, which is as negative about my intellectual curiosity and integrity as possible, because I think that you are the kind of person who resolutely refuses to correct your errors and who leaps to conclusions as resolutely negative about your interlocutors as possible.

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Lisa says:

@BTD:

This has been an interesting back and forth between you two – but you lost me this response.

When Jasper ever say he could not learn anything new about Kagan?

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Da Bomb says:

@John Cole: Well apparently Kagan’s colleagues, disagree with Glenzilla’s basic premise.

I don’t know, I would probably go with colleagues who have worked with her then some guy who really hasn’t.

292. 292

[…] usually a fan, but sheesh. John Cole is tiredof the auto-outrage. He makes an additional point that puts me in the Balloon Juice amen corner: I reject flat out that […]

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Randy P says:

@Bobby Thomson: Well, I sorta see Greenwald’s defense on that point. He can be accused of clumsy wording on this one:

[quoting himself] “And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.”
__
When describing her views on executive authority and detention power, I explicity cited two sources of information to know Kagan’s views…

I’ll give him the benefit of the doubt, that he didn’t really claim the statements about Bush-Cheney were written in 2001. It’s merely that the structure of the sentence makes it sound like he thinks so.

Was this complex sentence spoken rather than written? In that case, I’d give him a little slack on the confusing syntax. You don’t get a chance to rewrite the spoken word.

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Da Bomb says:

@Nick: This is like the second time you have asked this.

None of the screechers have responded. They won’t.

I posted the article yesterday about Johnsen and her support of Kagan opinion on indefinite detentions.

Complete silence…

295. 295

@LD50:

I realize this thread is virtually dead, but I’d rather clarify my point. These links, one from a book and another from said book’s author, discuss how Scalia many times followed Thomas’ logic, not the other way around.

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Mnemosyne says:

So in other words, it was OK to be all “Unitary Presidency – Fuck, yeah!” before George W. Bush adopted policies that weren’t to your liking?

If Greenwald is lying to you about when Kagan wrote the article, why do you believe him when it comes to his interpretation of that article?

I think this is what prosecutors call “fruit of the poisoned tree.” If Greenwald is willing to lie about something as basic as when Kagan made the statements that he claims she did so he can claim she made them in support of Bush, why is his interpretation of those statements totally trustworthy?

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t jasper parnell says:

@Lisa: Thanks. When the Beast of the Apcolypso comes, it dances to this guy’s tune.

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BTD says:

@Lisa:

Well it seemed clear to me that Jasper thinks he knows enough already. If that is the case what exactly will be the point of the hearings for him? Look, let me try it this way:

We simply don’t know that much about Kagan’s views. Her defenders point to her long history working for Democratic politicians and clerking for liberal judges as a record in itself, and they’re not wrong on that. But at best, it’s evidence of an orientation rather than a guide to Kagan’s thinking. That’s why Kagan’s hearings will be an uncommonly high-stakes affair, as they’re really the only avenue open to us to learn about her judicial thinking.

Kagan has previously stated her belief that nominees should be extremely forthcoming during confirmation hearings. It’s worth pausing for a moment to look at where we are: A candidate who has impressed everyone she’s ever worked with but doesn’t have the sort of public record that we associate with people vying for the job she’s seeking. We need the Senate hearings to learn about Kagan. Testimonials and analogies are no substitute for hard information.

There simply is no way that Jasper’s comments can be squared with that.

Jasper does not agree that there is not much direct evidence of Kagan’s views on specific issues.

But what does it matter anyway? Jasper is not interested in my views. These charades are tiresome.

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BTD says:

Any mirrors handy Jasper?

300. 300
Darkrose says:

I don’t have time for a direct democracy.

Tell me about it. I live in California.

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General Egali Tarian Stuck says:

@Da Bomb:

It would be honest and true, if GG would qualify his “total blank slate” remark with when it comes to judicial opinions from not having been a judge, that there obviously isn’t a record.

We are finding out daily, that she is not a blank slate from previous writings and from colleagues who have known and worked with her for years and decades.

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Bobby Thomson says:

If Greenwald is lying to you about when Kagan wrote the article, why do you believe him when it comes to his interpretation of that article?

My point is that I don’t care when the article was written. The ideas were just as bad before Junior Bush demonstrated their shittiness to people who weren’t good at thinking things through.

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t jasper parnell says:

@BTD: You moved from my lack of interest in your arguments, because I think you make bad arguments, to assuming that I knew enough for all time. In terms of failing to correct errors, you assert that I accepted Kagan’s liberalism based on an intuition, which then changed to acceptance based on circumstantial evidence without your admission that you incorrectly characterized my argument. You then accused me of ad hominem argument because I think you argue badly, which is not ad hominem, which you failed to recognize and then you conclude that because I am not interested in what you have to say about Kagan, I am not going to continue to look into the matter.

I do plan on following the Kagan nomination but I will note that the hearing is unlikely to illuminate anything much. Roberts, for example, said during his hearing that he called balls and strikes and in his time in office, it seems, only those how share his ideologically driven version of the American jurisprudence are able to throw strikes.

304. 304
Ron says:

@ruemara: Did Alter say that? I could swear I saw Jonathan Turley say that. In any event, it’s pretty ludicrous. The funny part to me is I could swear I’ve seen dozens of people mocking the ideological purity movement in the GOP who turn around and pull the same thing for the democrats. People who say we have a “59 seat majority!” somehow seem to think that all the democrats in the Senate are just going to be pure cheerleaders for whatever Obama wants. Also, sadly ,current reality is that it doesn’t take much to turn what should require a simple majority to require a 60-40 majority. Now no USSC justice nominee has ever been filibustered to my knowledge, but I wouldn’t put it past the current GOP to attempt it. I’m not always happy with Obama’s seeming to keep trying to appeal to the right while ignoring the left myself, but the ridiculousness that some of that has reached is insane. Whenever I see people refer to Obama as a “Republican president” it just makes my head spin. Do they really think there’s no difference between how Obama is running things and how McCain would have governed?

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Lisa says:

@BTD: I don’t see anyone “defending” her as much as I see people telling the folks with the premature vapors to chill out. Why are we racing the wingnuts to light the funeral pyre of her nomination? Let’s wait and see what shakes out as the nomination hearings get underway.
@t jasper parnell: Sweet! I would get down with the apocalypso if one of the four horsemen were Carlos Gardel. One of the others would have to be Tito Puente, though.

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4jkb4ia says:

Um, Scott Lemieux and Scott Horton seem to be capable of nuance in this matter, as indeed seems to be the general pattern with bloggers who have actually been law professors and aren’t Campos. Yes, I know Lemieux is not a law professor.

After being yelled at last night/this morning Rick Perlstein’s description of the Chicago 7 judge in Nixonland came to mind. Once upon a time, this judge was able to say that “Naked Lunch” was not obscene. But “everyone had to choose a side” now and he chose to be the hanging judge representing the wrath of decent society against real DFHs.

I guess I would also say that when you have a blog whose culture is melodramatic and believes that the righteous progressives have been in a steady cycle of retreat and defeat maybe since the Chicago 7 trial, you can’t be surprised when people are as bitterly and melodramatically against you as you are against them.

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D-Chance. says:

Bah, just “ditto” what I already said in the other thread from a day ago. She’s nominated. Dems have the votes; Pubs won’t filibuster. Get it over with, and we’ll forget Kagan just as quickly as we’ve forgotten that Facts of Life chick who was named a couple of months ago.

308. 308
Original Lee says:

@cat48: I was sort of in your camp about the Trig-truthers until I was paging through some back issues of People whilst waiting for the nice mechanic to tell me how much repairing my brakes would cost. Just from flicking through a few mags that were published several months apart, it looked to me as if they had a stunt double for Trig on the book tour. That plus the totally weird birth story now have me puzzled.

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t jasper parnell says:

@Lisa: And, of course, this guy.

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4jkb4ia says:

@Nick:
Dawn Johnsen has much more of a record speaking out against Bush than Elena Kagan does. “Executive power” and “preventive detention of enemy combatants” are not the same thing, and that’s the only thing we know where Johnsen and Kagan have the same views.

However, it was funny when someone who will remain nameless said that the nomination of Johnsen avoided “any sass from her”. Dude, you probably did not know who Johnsen was until Obama nominated her.

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Tom Hilton says:

@4jkb4ia:

I guess I would also say that when you have a blog whose culture is melodramatic and believes that the righteous progressives have been in a steady cycle of retreat and defeat maybe since the Chicago 7 trial, you can’t be surprised when people are as bitterly and melodramatically against you as you are against them.

I don’t have time to track it down right now, but I would highly recommend Ta-Nehisi Coates’s post (February, March maybe?) with the clip from Star Trek: First Contact (“they absorb entire solar systems, and we fall back…”), talking about how seductive and self-defeating that no-more-retreat frame is.

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Brachiator says:

@mey:

I’m with Al Giordano on this

Oh hell yes. Thanks very much for the link.

I also like this bit

The other “Progressives Against Obama” member I’ll take to the woodshed today is radio and TV host Cenk Uygur, for whom the Kagan nomination likewise is not really about Kagan but about Obama himself.

These people seem to be deeply disappointed that Obama is his own man, and not robotically in tune with whatever the progressive agenda is supposed to be. There is a whiff of the old liberal racism that has been documented as far back as Ellison’s Invisible Man, the assumption of white lefties that black folk will do what white lefties think is best for them and the country, along with the inevitable anger when they find that the world does not revolve around them.

And so you have this increasingly shrill insistence by the Greenwald crowd that Obama’s pick should be rejected not because she is not competent, but because Obama has failed to do what he was supposed to do, as defined by “progressives” like Greenwald.

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Scott P. says:

My point is that I don’t care when the article was written. The ideas were just as bad before Junior Bush demonstrated their shittiness to people who weren’t good at thinking things through.

The point is, I think, how do you know they were her ideas? How do you know Greenwald is summarizing them accurately?

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CrowsSong says:

Thank you for this. Well said, and absolutely true.

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chopper says:

@LD50:

zephyr was the gentlest of the gods of wind. some would use the word ‘dainty’.

to sit ‘zephyr-like’ means to not raise much of a breeze and just hang out.

HTH.

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4jkb4ia says:

@Nick:
If enough of the right is subject to epistemic closure, then enough right-wing politicians will behave as if they do too even if the left is directly fighting them. Especially with things like the public option and repealing DADT which are broadly popular according to polls you want to pick the people you are targeting in Congress instead of “the right”, and sometimes, e.g. Joe Lieberman, that means Democratic-affiliated people fighting each other.

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Bobby Thomson says:

@Scott P.: Reading the article works.

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liberalrob says:

I’m tired too, John Cole. I wish people would just agree with me.

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BTD says:

Yes, I know you have no interest in what I say and I argue badly and I mischaracterize what people think and am an all around idiot, according to you.

You on the other hand, are perfectly rational, never make a mistake, and when you do, admit them readily and never have a hostile thought in your head.

Look, I hate pedantry. I found your comments pedantic, hell, I still do. I hate this kind of thing but so be it — here is the definition of the word “intuition:”

1. direct perception of truth, fact, etc., independent of any reasoning process; immediate apprehension.
2. a fact, truth, etc., perceived in this way.
3. a keen and quick insight.
4. the quality or ability of having such direct perception or quick insight.

I meant the first definition when I used the word. To wit, Kagan served in Democratic Administrations, ergo she is a solid Liberal. I did not mean it an ESP sense. You assumed I meant that without considering that I meant it another way.

Now for admitting errors, if you did not mean it as an attack on me when you said my views did not interest you because I never understand my interlocutor, then I apologize. I certainly think my mistake was understandable.

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BTD says:

@Lisa:

Well, I feel pretty confident that a lot of people are “defending her.” Certainly the White House is. Hell, I know I have defended her.

If you mean in this thread, well, do you think Jasper is “defending” her? And if not, what constitutes “defending” in your view?

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And Another Thing... says:

@Mnemosyne: So I’ve been wading around the GG links for the past hour or so. Whether Lessig mis-read Greenwald on which article was printed when, is open to question. The way GG wrote his article is subject to interpretation. But I’m not interested in that pissing match.

What I care about is Kagan’s position on unlimited detention. I read the transcript of the Graham & Kagan testimony during her SG confirmation hearing. I think that GG significantly misrepresents her position. And Turley does too, and doesn’t include a link so you can check his work.

Now here is GG’s bullshit characterization of that testimony:

Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”

sorry I can’t do blockquotes..

and here’s Turley’s post:

http://jonathanturley.org/2010.....ena-kagan/

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t jasper parnell says:

@BTD: direct perception of truth, fact, etc., independent of any reasoning process; immediate apprehension.

If a conclusion is based on, as you characterized it, circumstantial evidence how is it “independent of any reasoning process”?

Also, if I find someone’s reasoning inadequate how does that suggest that I find all of my reasoning above reproach?

Isn’t listing dictionary definitions pedantic?

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FlipYrWhig says:

Vanishingly few of the objections to Kagan have anything to do with Kagan. They all have to do with shit-throwing by shit-throwers who want to prove that the existence of shit-throwers on the left who WILL NOT BE IGNORED! They’re envious that when the pundit/pressure group nexus on the right gets worked up, stuff happens, so they’re trying to build a pundit/pressure group nexus on the left. Greenwald might care about Kagan, because he has a binary logic where if you disagree with him on anything you are an abomination who must be smited. Hamsher doesn’t care about Kagan, she cares about being _seen_ as someone who cares about things. And I venture to say that at least 85% of the Kagan skepticism online derives from that basis: for a range of reasons a lot of people decided they didn’t like Kagan, grumbled about it, and still got Kagan, and now they’re mad because THEY SHOULD MATTER TOO, DAMMIT!

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Da Bomb says:

@Brachiator: That is the issue in a nutshell. Obama is doing his own thing. He’s not doing what the progressive overlords want him to do.

So it’s hurting their precious sensibilities.

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Da Bomb says:

@General Egali Tarian Stuck: And the funny part is, nobody cares to acknowledge their opinions. They rather listen to teh opinions of a person who has apparently lazily misinterpretate her stance on several issues.

Such sound thinking.

Commenter 321 just pointed it out.

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And Another Thing... says:

@And Another Thing…: Drat – the link to the Kagan testimony didn’t work, sorry.

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And Another Thing... says:

aaaaeeegggghhhh…

http://findarticles.com/p/news.....ntent;col1

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BTD says:

Our entire exchange was pedantic.

That was my point.

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t jasper parnell says:

@BTD: I disagree with the whole of being pedantic; although I did miss your claim that it was in previous. My point was initially that you misunderstood Cole’s post and then later on that you misunderstood my point and my argument about your ability to argue. This isn’t pedantry; although if maybe if you squint it looks like it.

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Damn, walking into this place on the west coast is like being Bruce Willis dropped into the 12 Monkeys world.

Amidst all the crossfire, this is the thing that stood out the most.

The general consensus among EVERYONE is that this administration is already too aggressive in their push to change the discourse, perhaps to the level of Teddy Roosevelt, to the point where a lot of reporters just want him gone in 2012 so they can get back to just talking about lost little girls and the awesomeness of America instead of boooring stories about healthcare, financial reform, and the plight of those who my colleagues perceive as just not worthy of coverage…you know, the working class.

That scares me.

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Mnemosyne says:

Just from flicking through a few mags that were published several months apart, it looked to me as if they had a stunt double for Trig on the book tour.

Was it Trig or was it her daughter’s baby (whose name I can’t remember, but is equally as stupid as “Trig”)? They’re only a few months apart so it wouldn’t be hard to mix them up.

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Batocchio says:

And where we have tried real direct Democracy, in places like California, where it takes a referendum to do anything – well you all know what a dysfunctional disaster that place is.

CA is hardly a direct democracy. It takes a two-thirds majority in the legislature to raise taxes. We’ve been over this before on this blog… The referendum system definitely has its problems, and the CA Dems have some scoundrels, too, but CA’s dysfunction is mostly due to the same GOP obstructionism we see in Congress. It’s just in CA, they have even more of a structural advantage for being scumbags and zealots.

On Kagan, it’s fine to defer to your senators if you trust them. But while not every citizen is a legal expert, not every citizen is a legal naif, either. (It doesn’t take a law degree to pick out major holes in Yoo’s arguments, for instance, although if you were putting him on trial for war crimes, you’d want a good lawyer who knew all the relevant statutues.) There are few matters as important as a Supreme Court justice. Obama knows this better than most presidents, and from what I’ve read to date, Kagan is a decent but not great pick, and certainly not the best. She could be trouble on some important issues. I’d like to hear what she has to say, though.

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Mum says:

John,

My sentiments exactly, and as a political junkie for most of 60+ years on this planet I thought I would never get as tired of it and as disgusted with it as I am. I frankly see no difference between the teabaggers and their counterparts on the left. Everything is black or white or good or evil or a conspiracy; false equivalency is the coin of the realm; experience and wisdom have no value – it’s how loudly and how often you shout your opinion that seems to win the day.

I read five articles relating to Kagan on the Huffington Post and the comments were mostly inept and inane, and that’s being generous. Thanks to the links to the Volokh Conspiracy and TalkLeft pieces. They were refreshingly reasonable and intelligent.

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WereBear says:

@FlipYrWhig: They’re envious that when the pundit/pressure group nexus on the right gets worked up, stuff happens, so they’re trying to build a pundit/pressure group nexus on the left.

The flaw in the screaming/lefty thinking is that the right uses their nexus to broadcast what their Powers have already decided… and make it look otherwise.

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buermann says: