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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

The Kagan Nomination

Even before the president’s announcement of Elena Kagan as his second nominee for the Supreme Court, progressives were beginning to rethink their position of skepticism (often assumed in the cause of encouraging a different nominee, typically Judge Diane Wood), and conservatives were beginning to gird up their loins for a confirmation fight.
There will be some progressives (probably Glenn Greenwald, but perhaps others) who may never reconcile themselves to support for a Justice with Kagan’s record as Solicitor General on civil liberties issues related to executive power and treatment of terrorism suspects.
But as SCOTUSblog’s Tom Goldstein suggested at The New Republic this weekend, the confirmation debate in the Senate is very likely to fall into familiar partisan/ideological patterns, with the final vote representing a mirror image of the Alito confirmation.
One major argument for her nomination all along has been her recent confirmation as Solicitor General with significant Republican support. But some GOP senators will quickly argue that a different standard altogether will be used for a lifetime appointment to the High Court, and find reasons to vote against her (one senator, Arlen Specter, is in a particularly embarrassing situation, having voted against Kagan for Solicitor General back when he was struggling to placate conservatives; he must now support her for the Court in the midst of a tough Democratic primary battle).
A summary of immediate conservative reaction to Kagan’s nomination by CBS’ Jan Crawford indicates that her enforcement of Harvard Law School’s ban on military recruitment on campus on grounds that DADT violated the university’s non-discrimination policies will be the lightning rod for the campaign against her. That makes sense, because the issue simultaneously strikes chords with cultural conservatives spoiling for a Court fight, and with conservative “populists” generally who will depict Kagan as an New York/Ivy League elitist out of touch with mainstream patriotical values.
But as I’ve argued earlier, the real question is whether the newly radicalized conservative/Tea Party faction of the GOP will insist on making the confirmation fight a showcase for their own distinctive views on the Constitution, which would make any Obama nominee, and most Republican nominees, categorically unacceptable. Kagan’s notoriously short public record of pronouncements on constitutional issues may, in fact, feed conspiracy theories that she represents a carefully planned leftist plot to move the Court in a totalitarian direction.
So even as Republicans search (almost certainly in vain, given the scrutiny she’s already received as a likely Court nominee) for some smoking gun in Kagan’s background, keep an eye on the tone of conservative rhetoric about this nomination. If it gets as shrill as I suspect it will, then progressives need to be prepared for a counter-offensive that exposes the radicalism of the increasingly dominant faction of the GOP.

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