Here we go again with the hyperbole from both sides.  A left wing ideologue that is gonna kill babies and take away our guns but a Cheney loving neocon at the same time.  The part that always amazes me the most is how both the left and right like to boil down a whole career into a few labels.  Suffice to say the jury is still out on Kagan like with every nominee until they sit on the bench.

My biggest concern with her nomination is her someone inconsistent writings and responses about executive power.

In 2005 she rebuked Bush’s military tribunals (see entire story here).

As news broke Sunday evening of her impending nomination, word began spreading of a little-noticed letter Kagan had co-signed in 2005. The letter laid out major concerns and criticism with an amendment that Sen. Lindsey Graham (R-SC) had authored to the Defense Authorization bill that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at GITMO. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions.

Kagan, along with fellow law school deans T. Alexander Aleinikoff of Georgetown,
Harold Koh of Yale and Larry Kramer of Standford noted that: “When dictatorships have passed… our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

It was a harsh rebuke of the one of the cornerstone philosophical tenets of the so-called “War on Terror.” And, in some respects, it diminishes the notion that Kagan values executive power over civil liberties.

In 2007 she did the same (read entire story here).

As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school’s graduation ceremony in 2007, she forthrightly condemned “the expedient and unsupported legal opinions” used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who “failed to respect the law” or who manipulated, bent, or evaded the law “to seek short-term advantage.” She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

On the other hand some statements she made enabling executive power during her confirmation hearings for solicitor general were troubling.

The people that actually know her like Elliot Spitzer all comment that she is remarkably intelligent and persuasive.  Spitzer goes so far to say she can persuade the likes of Kennedy to provide the 5th vote that is most important on a divided court on the most important issues like disavowing corporate personhood.

She’s obviously liberal on most social issues like civil rights and abortion. I like the fact that she defended against the Citizens United case. Even though she lost she had the gumption to call out Scalia as being “wrong”.  She is most famous kicking ROTC off campus as Dean of Harvard Law because of the millitay’s DADT policy.

Anti-choice groups are already bashing her (read whole story here).

Kagan is a supporter of taxpayer-funded abortion and has criticized Rust v. Sullivan, a case which upheld federal regulation that prohibited federal Title X funds from being used for abortion.

Dr. Charmaine Yoest of Americans United for Life said that Kagan “has strong ties to abortion-advocacy organizations and expressed admiration for activist judges who have worked to advance social policy rather than to impartially interpret the law.”

Kagan is also well known for supporting “LGBT rights” by opposing the presence of military recruiters on Harvard law school’s campus.  She judged that the military’s “Don’t Ask, Don’t Tell” (DADT) policy regarding individuals with same-sex attraction to violate Harvard rules regarding discriminatory organizations.

She called the DADT policy “profoundly wrong” and a “moral outrage” of the “first order,” according to NPR.

My personal feeling is since Thurgood Marshall is her role model that she will be a fine addition to the court.   Like Stevens and Souter before him who were both considered too conservative at the time if a justice is fair minded, appreciates legal precedent and not an ideologue the Constitution is a liberal enough document on it’s own merits for liberal interpretations of the law.  I dare say when her term ends people will be complaining her replacement is not liberal enough to fill her shoes.

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ChernynkayajavazPatsyTBlues TigerKQµårk 死神 Recent comment authors
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Great post, KQ. The only story I have been aware of is the Kagan nomination, and I’ve been trying to catch up. Here’s some stories I just watched on Maddow about her, and I am greatly encouraged.

A case for Kagan


I dislike her for shielding the Saudi family from 9/11 lawsuits.

Honestly, I will not follow it this time, as I am tired of the corporate bullshit.

As much as I love Obama, he’s still one of them – a corporate shill.

Are you happy with the health care reform?

Of course not, but we lie to ourselves in believing Obama and thinking we needed some reform to correct it down the line.

Wake up.

Obama, as a candidate was almost pure, but when his biggest donors were Goldman and Sachs?

Wake the F up.

And during HCR, he cut a deal with the devil when it comes to BIG PHARMA?

The same side of a coin, and as my mother always said, they are all crooks.

And, this president, really does try to squelch the press, the media, and the media is corporate owned – I get that – but do not think Obama is better than Bush.

Obama is increasing the wars and we voted for him but he is no different.

He’s Bush part deux.

I love Obama, and will vote for him again, but I am not fooled.

He’s corrupt. too.

Blues Tiger
Blues Tiger



The conservatives need a guarantee with their picks because you can pull apart their arguments.
Do the progressives really need a guarantee?
I think not.
Progressives have the better argument.
I like Kagan. She is a thinker and that tells me she will lean left because when you are open to serious thought you wind up on the left. As with Stevens, she is open to reason.

Blues Tiger
Blues Tiger



KQ–I ended up in ether when I clicked this link:

In 2007 she did the same (read entire story here).


Where? 😉


I don’t need to tell you what it was like ‘over there’ KQ. You seem to have guessed quite accurately.

“Bush III does it again” (I wish I had made this up)

Fine, I say. Surely you would have rather had McCain replacing three Justices?

Get a grip.

That being said, I wish Obama had of had more spine and been less wary of midterms. The argument that a liberal who can make a moderate argument influencing Kennedy may be pure fancy (and insider baseball, as far as I’m concerned), but it is an interesting angle, whatever its merit.

Anyone buy this reasoning? Why or why not?

But yes, with all the Greenwalders distilling it down to one issue, they forgot all the other stances she’s taken (and the one he has).

You may say she is flawed, on a very crucial Constitutional issue, but to be convinced she will be our Souter is premature, at least before hearings.

The most convincing point of wariness may be the lack of a paper trail. Talk me down on this one.

No WASPMs! I know it’s being played up, and it’s not a big deal; but a token Protestant would still be nice. Heck, I want the day when there will be a token non-believer.

Why do all have to be from Ivy League schools though? That is also being played up on the shows, but this one does bother me a bit (though I’m not raising a stink about it, it just gives me minor pause). I’m not even saying they have to be from a state school. Sandra Day O’Connor was from Stanford, for example (though other Justices got their undergraduate there). And there is one Southerner (Thomas), Stevens was from Chicago, and there are currently two Californians (including Stevens). The rest are from New York and New Jersey. WTF? I know it may sound silly, but I do think where you come from can possibly give you a different perspective on certain issues. And that personal life experience can influence a decision positively as much as time in the Harvard Law library or time on the bench. But, these are qualities that cannot be measured…


By the way, I swear I didn’t see the geographical question before I ranted on it, and I just saw someone talking about it, so – darn – there goes me having an original thought on any of that.


I quite agree with your assessment of Ms. Kagan. The tiresome and predictable drivel is coming from the left too – Glenn Greenwald and his fanboy base are, as usual, whining about not getting a “true” progressive, whatever the hell that means on these days.


I don’t know if I’m just in a bad mood or if those whiny all-or-nothings have evolved beyond whiny into unbearable childish tantrums.


e’cat I meant to reply to your post and I accidentally hit “report this comment.” So sorry and I hope I didn’t cause any problems!

Anyway, I agree with you..between Cenk, Hamsher, Greenwald, etc., these constant tantrum episodes are getting tiresome…


Well that explains those men in dark glasses lurking outside my house! 😆


If you hit the report button by accident but don’t submit by clicking on the “Report Comment” button, there is no harm done. No worries.