Narcissism: Obama, Kagan, and the Court

By Michael J.W. Stickings

I haven't weighed in on the Kagan nomination yet, but, as I digest it more and more I'm growing less and less happy with it -- not that I was ever that happy with it to begin with.

I tend to agree with Dahlia Lithwick that, for the most part, Kagan appears to be largely "inscrutable." We just don't know much, let alone enough, about her:

So we've begun another round in the judicial confirmation game of "my trace DNA evidence is better than yours." A letter Kagan co-authored in 2005 condemning a court-stripping proposal for suspected terrorists at Guantanamo Bay will hearten the left. Her statement at her 2009 confirmation hearing that the president could detain enemy combatants without trial will make liberals very nervous. Kagan's refusal to find a right to same sex-marriage in the Constitution may provide some small comfort to conservatives. But the fact that she was strongly and vocally opposed to military recruitment at Harvard Law School until the courts forced her to rescind her policy suggests a willingness to fight for liberal causes. We will debate the ambiguous evidence of Kagan's views on executive power for weeks without knowing much of anything.

This, I think, gives Kagan the benefit of the doubt -- because she's so inscrutable, we can't make much of an informed judgement as to her worthiness for the Supreme Court.

But that's not good enough. This was an opportunity for Obama to nominate a strong liberal/progressive man or woman, a strong liberal/progressive presence to rival Scalia's, a leader on the Court for potentially decades to come. Instead, he played it safe and picked a friend and confidante, and, as Ezra Klein finds, someone just like himself:

When Obama announced Kagan's nomination, he praised "her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, 'of understanding before disagreeing'; her fair-mindedness and skill as a consensus-builder." This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side's viewpoint. He's more interested in the fruits of consensus than the clarification of conflict.

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Understanding this is the key to understanding the Kagan pick: Obama's theory of negotiations is that extending an open hand makes it easier for people to see if the other side has made a fist. It both increases the likelihood of a deal and increases your chances of winning the PR war if a deal falls apart.

This is a theory that frustrates many liberals who want to see a more confrontational tone from the president, but it's core to Obama's theory of winning a negotiation. And the need to win negotiations is core to Obama's -- and everyone's -- theory of the Supreme Court.

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That said, it's not clear that majorities are dependent on an individual justice's skill at negotiation.

I appreciate Obama's political skill, and his penchant for consensus-building (and, where there is no give from the other side, his willingness, as we saw with health-care reform, to go it alone), even as his method frustrates me, even as I find his "theory" wanting, largely because the other side is rarely if ever willing to play along. But what works or what may work in the political arena, trying to build majorities, or super-majorities, on Capitol Hill, may not be what works in the secluded chambers of the Supreme Court, where the key is to win Justice Kennedy's vote, and it's not at all clear to me that what the deadlocked Court needs is someone like Obama.

This is not to say that Kagan would be a wholly unsuccessful judge. Assuming she's confirmed, she may well win some decisions for the liberal side. And she may well turn out to be a reliable liberal/progressive voice on the Court, whatever her disturbingly Bush/Cheney/Obama-like views on the unitary executive. But why go with such a safe pick, someone whom liberals/progressives are right to distrust but who, given her apparent ability to win over conservatives and her lack of much of a record, should be easily confirmed as hardly the sort of left-wing radical some on the right claim she is?

Democrats haven't exactly been able to appoint all that many Supreme Court justices in recent decades. Of the current nine, only three were appointed by Democrats: Ginsburg and Breyer by Clinton and Sotomayor by Obama. Is Kagan really the best Obama could have done? Surely not.

She may well be, as Jeffrey Rosen puts it, much like Klein, "the ideal Obama jurist," but that's what worries me. I'm still an Obama supporter, but I, like so many on the left, expected much more from him, or at least, given reasonable expectations of his potential, hoped for much more, and demand more from him now. No, benefits of the doubt are no longer to be given, neither to Obama nor to his nominees, but I will certainly support Kagan's nomination, for what else are we to do but to state our objections before giving our support, lest we end up siding with the right-wing extremists who are sure to assault her nomination with the usual viciousness? But that doesn't mean we need to be happy about it.