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Kagan not an automaton but…UPDATED

Kagan not an automaton but…UPDATED

Last updated on: March 13, 2015 at 5:58 pm by Elizabeth Scalia

Kagan not an automaton but…UPDATED 2015-03-13T17:58:01+00:00 Elizabeth Scalia

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A morning email from a good friend:

You predicted Bush would pick Bernard Kerik for Homeland Security (that didn’t work out). You predicted Bush would pick Harriet Miers for the Court (also, ahem, didn’t work out). You predicted Hillary would cry before the New Hampshire primaries in ’08 (things…did not work out for her) and on In the Arena last week, you predicted Obama would choose Kagan. I think your successful predictions are like a kiss-of-death, and Kagan should be worried! Please don’t predict anything for me! Also, you’ve been quiet, what do you think of Kagan, now? You seemed impressed with her.

That particular episode of In the Arena, in which we also discussed the Pope and the scandals within the Catholic church, and the immigration laws in Arizona, was taped weeks ago, directly after the passing of the AZ legislation, and before it was amended to prohibit profiling, thus rendering it (to me) more palatable than at first.

I did predict that Obama would select Kagan as his nominee (discussion begins around 20:11), and I was not terribly troubled by that. Assuming she would be (at the very least) a center-left jurist whose positions would predictably be the opposite of mine (and that this would be true of any Obama nominee) Kagan seemed to me to possess one giant positive that would not be repeated in any other Obama candidate: she is not an automaton.

Elena Kagan is apparently capable of looking at conservative people and conservative ideas and seeing human beings, holding valid positions.

If that sounds like nothing to you, it seems like quite a lot to many on the left who are freaking out about this very quality of Kagan’s. She really is a bit like Harriet Miers, in that sense; the left is as unsure of Kagan’s perfect obedience to “the cause” as was the right of Miers.

As with Miers, I rather like the idea of a judge leaving a few notions up for grabs. And as I argued back then, the president is entitled to his nominee, and the nominee is entitled to her public review before the Judiciary Committee. Because Bush’s base went bananas, Miers never got her review.

Kagan will get hers; this White House has taken the notion of a “political machine” to new levels to insure it. I have little doubt that Kagan will win confirmation (and the support of more than one conservative) when she addresses the panel, because she appears to be gregarious, personable, friendly, thoughtful and–again–capable of engaging with conservatives in a warm and human way – without pre-determined, barely-concealed hostility.

The bigger question is this: is she qualified to sit on the court? Here, I become a bit worried, because this transcript suggests that as Solicitor General, Kagan (who seems not to have put up with unprepared students) has dared to go unprepared before SCOTUS, and–it seems to me, anyway–she has tried to cover her woeful lack of preparation with a cheeky, almost lecturing bravado. Reading the excerpt, Kagan reminds me of a kid who knows she is in the Advanced Placement class by mistake, but is going to try to dazzle her way through it, anyway. I find that a bit worrisome, as I do some of her other analysis. This, for instance troubles me. Then again, I am not a lawyer, so my thoughts there don’t count for much.

All that said, Kagan probably is the best conservatives can hope for, as Glenn Reynolds suggests, from a politically weakened, but still very determined Obama. If the right (or the dissatisfied left) shoots her down, he will undoubtedly come back with one of the ideological automatons who are Legion in the Ivy Leagues.

Last night we saw assurances that “Kagan is straight,” from people who are routinely obsessed with such matters.

Well, as Moe Lane pointed out weeks ago, a part of Obama’s base has a serious issue with gays, and especially with gay marriage, so I’m not surprised that this White House has “bristled” at the questions. Then again, what doesn’t this porpentinesque White House “bristle” about?

I am alternately bored and intrigued with the question. I am bored because really–except for the identity-group-obsessives–who cares? It is inevitable that someday an openly gay person will sit on the court; narratives move forward, not backward, and things must be dealt with as they arise.

But I am intrigued by the notion that Kagan has perhaps had to deal with this question for some decades, if not her whole life. Whether she is gay or not, many people seem to assume it to be so, and if Kagan has spent her life dealing with people making assumptions about her, that means her perspective is one that is calculating and wary, yes, but also probably inclined toward surprise moves and diversionary tactics. I would bet that Elena Kagan does not like anyone assuming that they know what she will think and do on any given issue, and in this world full of rigid political Luthers–all standing where they are and incapable of doing other–I think Kagan will have a flexibility that will probably make her a swing vote, rather than an assured leftist one.

But then again, it is very likely that Justice Ginsberg, who has been ill for a long time, will be retiring on Obama’s watch. Obama will surely replace her with another member of the hard-left, and at that case Kagan’s “swing” vote may be the one to pull the nation hard-to-port. Unless of course, she surprises.

It may be that in nominating Elena Kagan, Obama believes he is playing the same rope-a-dope head-fake that Bush seemed to be aiming for with Harriet Miers. I would call her the replacement for Sandra Day O’Connor. The swing who will give fits to both the left and the right. As such, again, she may be the very best we can ever expect from this president.

UPDATE: Obama was not too hot for Miers’ back in the day.

And, um…no…whatever else Kagan is or is not, she is not exactly up from mainstreet, USA.

More on Kagan:
Byron York: Questions on Kagan’s handing of WH Eco-Terrorist Controversy
Arlen Specter: SCOTUS nominee doesn’t have to answer questions.
If Kagan had dated Spitzer: that would be enough to disqualify her in my book.
Does Kagan need to apologize regarding military on Campus or has the White House already taken care of that issue for her?
David Brooks
Oh, Gore!: She leaves her car running?
The Daily Show: does what it is paid to do
Kagan’s White House created “interview: Riles the press, inasmuch as they can be truly “riled” by this WH.
“Vapid and Hollow”?
Ace O’ Spades: Looking at Free Speech and Kagan
Cult of Celebrity
Track the nomination on Bench Memos
Kim Priestap: Yes, the best we can get from Obama
Little Miss Attila: Also bored by Kagan’s private life

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