A Healthy Debate about Elena Kagan's Nomination

I've been following Glenn Greenwald's opposition to the "blank slate" nominee, Elena Kagan, to the SCOTUS. Larry Lessig, Ms. Kagan's good friend, has her back.

BW readers probably can tell that I'm on Glenn's side on this issue (especially as I pointed out and Glenn has since done the same of problems pointed out by Jonathan Turley and Jeffrey Toobin), but as mcjoan at the Daily Kos pointed out this afternoon, this is a healthy debate. Like mcjoan, I hope progressives such as Bernie Sanders, Al Franken and Jeff Merkeley will pick up on these points in forcing Ms. Kagan to take some positions, whether we agree with them or not.

President Obama is squandering a golden opportunity when we have many Democrats who could carry a nominee forward without a single Republican vote. I would prefer a very progressive candidate to hold a candle to the many years Justice Stevens was on the court. If a nominee is too timid to say what's on her mind or fails to address her meager record, our POTUS should withdraw her nomination. Frankness and transparency, which candidate Obama promised, are at stake here and will mark his legacy to be characterized more like W's--more of a unitary executive--instead of a complement of three branches.

Stay tuned. I'm still looking for more opinions besides the ones I posted yesterday and today.

Update: as promised, I found some more opinions and facts via Alternet and Mother Jones. Very discouraging indeed.

Second update: Nate Silver at 538 has an angle regarding actuaries.

The More Axelrod Obama Spins about the SCOTUS Pick

the more I am sitting on the fence about Sonia Sotomayor as a sound jurist of empathy and justice. From the NYT:

But as it strives to uphold President Obama’s pledge to seek “middle ground” in the abortion debate, the administration has cited the case in e-mail messages and conference calls with socially moderate outside advocates, said the Rev. Samuel Rodriguez, president of the evangelical National Hispanic Christian Leadership Conference, who learned about the case from the White House.

“She went against the abortion lobby,” Mr. Rodriguez said. “The spin was that Obama did not reach into the far left and that is great for me and it is great for my constituents.”

As a prominent figure in a fast-growing group with one foot on each side of the aisle — evangelical Hispanics, Mr. Rodriguez is avidly courted by Democrats and Republicans alike, and the Sotomayor nomination posed an emotional dilemma, he said.

Enter Glenn Greenwald, a constitutional lawyer whose opinion I trust, has a different take on Judge Sotomayor, partly as a lawyer who argued a couple of cases in her circuit, and partly, arguing the case of a Latina judge on the court to balance it:

Obama has also ignored the deeply dishonest right-wing attacks on Sotomayor, beginning with the inane objection to her perfectly benign and accurate comments on videotape that appellate judges, as distinct from district court judges, "make policy." Lawyer Anonymous Liberal thoroughly eviscerated that line of attack as the shallow and deceitful argument it is. A similar avenue of certain attack -- that Sotomayor said in a 2001 speech that a female Latina judge has experiences that can inform her view of cases -- is equally frivolous. There are a whole range of discretionary judgments which judges are required to make; does anyone actually doubt that familiarity with a wide range of cultural experiences is an asset?

I think Glenn also decided to deflect the wingnuts immediately.

Too bad Obama's PR team believed the POTUS had to spin it further. He didn't need to; however, it seems to me that he is trying to reinact his classes at U of Chicago Law School as a pragmatist.

One concern is that despite similar personal economic and educational backgrounds of Obama (albeit he never lived in Sec 8 housing that I am aware of as Judge Sotomayor did-- and it's good to have those who with some help moved up--) and Sotomayor, she will not lean enough on corporations about labor issues or protection clauses. I'm concerned about class actions suits being dismissed against Wall Street. (h/t glacierpeaks at Open Left). Fits in with Timmeh G and the banksters, as Atrios calls them.

Wedge issue cases, which are also filed protection clauses are anyone's guess. She may be Souter in reverse (maybe HW Bush should have picked her, if he wanted more conservative views).

I'm also concerned that VP Joe Biden may have been overruled on this one. Hillary Clinton's influence may be been at play, but I cannot and won't try to pursue that fleeting thought.

No drama-- President Obama. I have to remind him that yes, the middle helped him get elected, but that the GOP already waged war on him on his first month. Take your chances on this one, Mr. President. But if this is a close vote, as it was on the budget, then the test balloons are over. I should hope that you will move more progressively to the left on the bus. Conservatives don't rule the chickenhouses anymore.

Axelrod tried to spin the same thing on John Edwards 5 years ago. And Elizabeth said that Axelrod often didn't reflect John's real views.

Update: Sotomayor has an anti-1st Amendment ruling as of last year. (h/t to a friend on FB)

A good SCOTUS to Retire: David Souter

David Souter, one of the GHWB's picks, who is ready to retire. Here's the link to the story:

http://www.msnbc.msn.com/id/30508968/

I would have thought Justice Stevens first. Well, POTUS, be wise and seek Souter's counsel on good ones to promote.