Elena Kagan … secret centrist?

posted at 10:12 am on May 12, 2010 by Ed Morrissey

Some critics on the Left have compared Elena Kagan’s nomination to the Supreme Court to that of Harriet Miers by George Bush — a stealth candidate who doesn’t fit the base’s demand for SCOTUS nominee.  An initial assessment of Kagan’s papers at the Clinton Presidential Library by Politico’s Josh Gerstein will give them more ammunition.  They show Kagan involved in Bill Clinton’s effort to “triangulate” on issues to outbox Republicans by taking centrist or conservative positions and pre-empting their attacks on him after the disastrous 1994 midterms:

The memos reviewed by POLITICO suggest that, during her time as a White House deputy domestic policy adviser, Kagan fit comfortably within a cadre of Clinton aides known for centrist impulses. And Clinton often appears to have sided with Kagan’s approach.

However, the documents could underscore concerns among some liberal activists that Kagan was an advocate of the policy triangulation of the Clinton White House and thus might not be a reliably liberal vote on the court.

A 1998 memo shows that Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases of rape or incest – in part to avoid a messy battle with Republicans. …

In another instance, a memo shows Kagan opposed efforts by labor unions and Sen. Ted Kennedy (D-Mass.) to get Clinton to insist that he would only sign a bill Republicans were advancing to ease overtime pay rules if Congress used the same measure to expand the Family and Medical Leave Act.

In a handwritten note to Reed, Kagan said she preferred trying to alter the so-called comp time bill to address the administration’s priorities on that issue rather than threatening a veto if the family leave expansion wasn’t included. “The AFL-CIO has requested this particular strategy and veto threat,” the accompanying memo said.

A set of memos about racial profiling don’t mention Kagan’s position directly, but indicate that most of Clinton’s domestic policy staff favored a study of the issue at a time when two aides, Chris Edley and Maria Echaveste, wanted Clinton to sign an executive order banning the practice in most instances.

This may have more direct impact on Kagan’s judicial philosophy, especially for the Left:

The memos also show Kagan served on a government working group that decided to dial-back the Clinton administration’s efforts to decrease the disparity in sentencing between crimes involving crack and those involving powdered cocaine. A draft report from the group painted the decision as a grudging but realistic one based on a stalemate in Congress over the issue. “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites,” the report said.

The issue of disparate sentencing between cocaine and crack was, at the time and now, a lever to play racial politics.  Clinton’s fade on making this a front-and-center issue angered many on the Left and some libertarians as well, for both political and policy reasons.  The principled argument on creating parity for sentencing guidelines between the two illegal drugs has some validity even apart from the demagoguery it provoked.

If Kagan was responsible, even in part, for pushing Clinton to drop the subject, expect a big howl from the Left and a big question from the Right.  If Kagan really believed that the sentencing disparity was unjust, shouldn’t she have taken a principled stand to continue to fight?  As a Supreme Court justice, will Kagan stand up for her beliefs, or will she horse-trade as she arguably did in this instance?  This relates directly to judicial practice and theory.

Political aides conduct machinations that require compromise, while jurists have to make decisions based on principle.  That’s the problem that comes up when a President nominates a political aide to the federal bench.  Usually that happens at the district court level, which allows a judge to build a record of decisions that can be judged for actual judicial philosophy.  Unfortunately for Kagan, that pattern continued at Harvard Law, where she joined the administration in attempting to keep military recruiters off campus.   Now the explanation from her defenders is that she was just supporting the Harvard administration’s position — which sounds a lot like the political gamesmanship Kagan enabled in the Clinton administration.

The most accurate thing that can be said about Kagan’s public record is that she makes a great triangulator.  She should run for office with that kind of talent, but Kagan probably doesn’t belong on the Supreme Court on that basis.


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Shoot, maybe it’s just her smile. She really is a smiler.

AnninCA on May 12, 2010 at 11:03 AM

And you really are insipid, Ann. Her vibe? Her smile? I think we’re all a bit “fed up” with your imperceptive posts.

anXdem on May 12, 2010 at 11:15 AM

And you really are insipid, Ann. Her vibe? Her smile? I think we’re all a bit “fed up” with your imperceptive posts.

anXdem on May 12, 2010 at 11:15 AM

Hey, I’m allowed to indulge once in awhile and post “gut” reactions.

AnninCA on May 12, 2010 at 11:16 AM

Lourdes on May 12, 2010 at 11:13 AM

Ann is by far the most prolific airhead I’ve ever encountered.

AsianGirlInTights on May 12, 2010 at 11:17 AM

She looks genuinely like a cheerful soul.

AnninCA on May 12, 2010 at 11:10 AM

So did Mao Tse-Tsung! So I guess he’d be great on the Supreme Court, too, yes? Wow, could that guy ever smile, he was a real smiler! I read that Stalin loved to smile, too and let’s not forget those big smiles by Hugo Chavez, what a smiler! Supreme Court material!

Lourdes on May 12, 2010 at 11:17 AM

BTW, anyone who doesn’t think that “judges” are political is really blowing smoke.

That’s absurd thinking.

AnninCA on May 12, 2010 at 11:18 AM

AsianGirlInTights on May 12, 2010 at 11:17 AM

Yeah, and bandwidth waster but it’s not my site, so, not up to me…

So, anyway, now that the air has been sucked out of the Kagan discussion by AnninCA’s “she’s a smiler” support, I think it’s time to go run an errand.

;)

Lourdes on May 12, 2010 at 11:19 AM

Elena Kagan: Collected Documents
=======================================

2009 Senate Confirmation Hearing
==================================

http://documents.nytimes.com/elena-kagan-documents#document/p320
==============================

canopfor on May 12, 2010 at 11:21 AM

Please, tell me someone who you want Obama to appoint that he would actually appoint.

Red Cloud on May 12, 2010 at 11:07 AM

Sorry, I’m too busy enjoying the ass rape he’s giving America already. So, any objection I have to a leftist Harvard inbred that hates our military and has no “history” to determine viability to the highest court in the land in lieu of any other leftist Obama may appoint instead won’t make the joy I’m feeling let up. Afterall, it’s only a SCOTUS appointment. No BFD, right? Let’s all just go back to sleep and enjoy the process./

Fletch54 on May 12, 2010 at 11:22 AM

Joe Stalin had a nice smile, too. If she’s a long time, close friend of the Won, she’s not a centrist. That’s what the media tried to make everyone believe about our dear leader. Makes the bitter pill go down easier, don’t ya know.

Kissmygrits on May 12, 2010 at 11:38 AM

If she’s a serial triangulator, great. Chief Justice Roberts has shown how he can drag a squish to the right answer with Justice Kennedy. Now somebody really make me believe she’s a centrist or serial triangulator, until then she’s a commie…

phreshone on May 12, 2010 at 11:38 AM

Lourdes on May 12, 2010 at 11:17 AM

ewwww* no, he was a “polo-shirt” smiler.

I can’t stand them.

I like authentic reactions. Some people like people. Others really don’t.

I fancy I can tell. *haha

AnninCA on May 12, 2010 at 11:40 AM

That’s absurd thinking.

AnninCA on May 12, 2010 at 11:18 AM

It’s really difficult to resist the temptation to blast fat pitches like that over the fence.

You ought to pitch batting practice.

ontherocks on May 12, 2010 at 11:53 AM

She will likely end up being the best we could of hoped for from Mr Zero

WoosterOh on May 12, 2010 at 11:56 AM

As Rush said, she is simply Obama in the mirror. He has picked the closest thing to himself to sit on SC. It really is as simple as that. And AnninCA, STFU already. You’re tiring and insipid.

NJ Red on May 12, 2010 at 12:17 PM

Hows that for bipartisanship? It’s a win-win situation.

Johnnyreb on May 12, 2010 at 10:46 AM

Moreover, the appointments have a tendency to surprise people as they settle in. Who is moderate today could be a lot more moderate or even conservative in the future.

AnninCA on May 12, 2010 at 10:49 AM

I’d be very interested if you could come up with even one clear example of a liberal or moderate who became more conservative once appointed to the Supreme Court.

didymus on May 12, 2010 at 12:23 PM

The White House keeps calling her a “legal scholar” with political experience when, as these memos so obviously demonstrate, she’s really a politician with a legal background. It’s akin to nominating a former Senator or other top politico for the court, someone with street cred with both sides of the isle, rather than opening a new political war by nominating a divisive judge like Diane Wood.

Not a bad strategy for them to follow, given how weak the administration suddenly seems, but it is a major turnabout from the guy who said “I won” the last time.

MTF on May 12, 2010 at 12:25 PM

Kagan had issues with military recruiting while dean of harvard law, but had no problem with this,http://www.law.harvard.edu/programs/ilsp/about/ and considering Sharia’s treatment of homosexuality, It’s interesting hypocrisy to say the least.

There’s a piece at AT on this story by Alan Foster, which they won’t allow to be linked.
The stunning question would be, if she is in fact lesbian, (insert Seinfeld reference) how in hell does she reconcile this conflict?

ontherocks on May 12, 2010 at 12:32 PM

American Spectator‘s Jeffrey Lord says that the “teachable moment” about Elena Kagan is that she is a not-so-closeted socialist. He provides some suggestions that the Senate should be asking because socialism flies in the face of our rule or law, the Constitution, and our capitalistic economic system.
http://spectator.org/archives/2010/05/12/the-socialist-judge-elena-kaga

onlineanalyst on May 12, 2010 at 12:35 PM

The stunning question would be, if she is in fact lesbian, (insert Seinfeld reference) how in hell does she reconcile this conflict?

ontherocks on May 12, 2010 at 12:32 PM

It’s the age-old nonsense by Marxists and Stalinists: how they can be communist and still so gung-ho for the politics that have taken such a toll on their very own for so long. It’s an intellectual and even spiritual divide that is impossible to breach.

“Flee Stalin’s ruin, but take Stalin’s politics to another land and reconstruct them there!”

It’s nonsense, makes no sense but easily explains today’s Leftists.

Lourdes on May 12, 2010 at 12:38 PM

“Flee Stalin’s ruin, but take Stalin’s politics to another land and reconstruct them there!”

It’s nonsense, makes no sense but easily explains today’s Leftists.

Lourdes on May 12, 2010 at 12:38 PM

It’s one thing to advocate for closeted homosexuals in the US Military, heterosexual or otherwise. But to enable a platform for Sharia, which imposes jail or death as “punishment” for that lifestyle – which you may practice, requires such a prodigious set of blinders it should disqualify anyone from a position of authority, let alone SCOTUS.
A mechanism to prevent these leftists with such cognitive dissonance from embedding themselves parasitically in government, is impossible with the current batch of PC infected GOP.

ontherocks on May 12, 2010 at 1:14 PM

The thesis is sort of troubling. I think it puts her well outside the political mainstream unless she’s willing to repudiate it. 30 years’ distance might make that a plausible attempt.

DrSteve on May 12, 2010 at 1:33 PM

secret centrist are you out of your freaking mind??
.
Kagan wrote articles in praise of Socialism, and is a closet (pun intended) Saul Alinsky true believer in Socialism for the greater good to redistribute wealth. since Evil Socialism is the diametric opposite of the Declaration of Independence and the US Constitution then Socialism alone is disqualification for SCOTUS

mathewsjw on May 12, 2010 at 2:03 PM

Sorry, I’m too busy enjoying the ass rape he’s giving America already. So, any objection I have to a leftist Harvard inbred that hates our military and has no “history” to determine viability to the highest court in the land in lieu of any other leftist Obama may appoint instead won’t make the joy I’m feeling let up. Afterall, it’s only a SCOTUS appointment. No BFD, right? Let’s all just go back to sleep and enjoy the process./

Fletch54 on May 12, 2010 at 11:22 AM

I notice you utterly failed to answer the question I posed, nor address any of the points I mentioned. Are you a liberal in disguise? That’s what liberals do when they’re met with logic and reason.

Red Cloud on May 12, 2010 at 2:08 PM

I’d be very interested if you could come up with even one clear example of a liberal or moderate who became more conservative once appointed to the Supreme Court.

didymus on May 12, 2010 at 12:23 PM

Byron White is the one recent example. If I knew anything about the history of the court before 1970, I’d think there would be quite a few more.

thuja on May 12, 2010 at 2:27 PM

BTW, anyone who doesn’t think that “judges” are political is really blowing smoke.

AnninCA on May 12, 2010 at 11:18 AM

See “Florida Supreme Court, December 2000″.

Del Dolemonte on May 12, 2010 at 4:11 PM

Well, I find her accomplishments more than sufficient.

AnninCA on May 12, 2010 at 10:36 AM

LOL, you also still believe Bill Clinton “accomplished” things as President.

Del Dolemonte on May 12, 2010 at 4:14 PM

Assume she is as horribly liberal as many claim she is. Because chances are she is.

That said, I think there are other candidates worse than her in the wings. Still, the Senate needs to ask her tough questions.

Mr. Joe on May 12, 2010 at 4:21 PM

She looks genuinely like a cheerful soul.

AnninCA on May 12, 2010 at 11:10 AM

So did Mao Tse-Tsung! So I guess he’d be great on the Supreme Court, too, yes? Wow, could that guy ever smile, he was a real smiler! I read that Stalin loved to smile, too and let’s not forget those big smiles by Hugo Chavez, what a smiler! Supreme Court material!

Lourdes on May 12, 2010 at 11:17 AM

Funny you should mention Mao….

*rolling eyes*
I’m done with all these stories about what someone said at some academic gathering.
I saw an article about how McCain quoted Mao, too. LOL*
Good grief. Great people are often quoted, regardless of their politics.
AnninCA on October 19, 2009 at 2:58 PM

Yeah, she actually called him a great person….she loves mao and likely everything he did, so trying to make her understand how shallow her idiocy is will be a waste of time my friend.

runawayyyy on May 12, 2010 at 4:28 PM

Hey, I’m allowed to indulge once in awhile and post “gut” reactions.

AnninCA on May 12, 2010 at 11:16 AM

I know its superficial but my gut reaction was much more colorful and a little chunky too. Good thing I was near a waste paper basket.

jbh45 on May 12, 2010 at 5:04 PM

I’d be very interested if you could come up with even one clear example of a liberal or moderate who became more conservative once appointed to the Supreme Court.

didymus on May 12, 2010 at 12:23 PM

Byron White is the one recent example. If I knew anything about the history of the court before 1970, I’d think there would be quite a few more.

thuja on May 12, 2010 at 2:27 PM

Not a clear example. Sorry, but a justice who was failed to become more liberal is not the same as a justice who moved in a conservative direction. It’s hard to pin White down as conservative or liberal, primarily because he acted with restraint rather than jumping on whatever would advance a certain ideology.

From Wikipedia

White’s Supreme Court tenure was the fourth-longest of the 20th century.[2] During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court,[2] and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down. He was seen as a disappointment by some Kennedy supporters who wished he would have joined the more liberal wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade.[4]

If you (reasonably enough) doubt Wikipedia, check the referenced book, The United States Supreme Court, by Christopher Tomlins, where this excerpt comes from.

Better try again.

didymus on May 12, 2010 at 5:20 PM

BTW, believing that Kagan is a “secret centrist” would be about as bright as believing that Obama is a “secret centrist.”

didymus on May 12, 2010 at 5:49 PM

Are Napolitano and Kagan the frumpy, bug-eyed twins who were separated at birth?

Ricohoc on May 12, 2010 at 6:04 PM

It sounds like Kagan puts her finger to the wind and then takes the winning side.

That could mean more 6/3 decisions.

The woman doesn’t seem to know her own mind.

While the thought is scary, she is replacing Justice Stevens who knew his liberal mind all too well. She chose academia for her career. You have to pretend to be liberal at least part of the time in academia. (My son is getting his Ph.D, he is very cautious.) Maybe when she is free, she will be an actual moderate.

Maybe if Roberts and Scalia and Thomas flirt with her a bit… tell her she has nice eyes… they can get her to cross-dress as a Conservative! She seems the experimental type.

It could happen! Really.

OH yeah and Alito. That’s who I forgot.

petunia on May 12, 2010 at 6:57 PM

since Evil Socialism is the diametric opposite of the Declaration of Independence and the US Constitution then Socialism alone is disqualification for SCOTUS

mathewsjw on May 12, 2010 at 2:03 PM

Oh were it only so. Being a socialist and working to enslave all of America is prerequisite for the SC for Obama.

So I’m fantasizing a bit, hoping that maybe… MISS Kagan will be persuaded by the hunky old men on the conservative side of the court.

Really, they are really smart and I always liked the smart guys best. My husband is very smart. And cute.

And if she is gay? The girls on the other side are really not much to look at.

Yes I do know this is probably the dumbest post ever in the history of Hot Air. But it’s been a long day and I need a diversion.

petunia on May 12, 2010 at 7:06 PM

I don’t know much about Butch Kagan, but I know in my heart of hearts she is as much a centrist as Ronald Reagan was a leftist.

She’s O’Chavez in a pantsuit.

Sweet_Thang on May 12, 2010 at 7:15 PM

NO B.O. Pick another plz. Yeah she cleans up nice, but we need some normalcy to the Constitution plz as it was written , not as it is being destroyed.

johnnyU on May 12, 2010 at 7:19 PM

NO B.O. Pick another plz. Yeah she cleans up nice, but we need some normalcy to the Constitution plz as it was written , not as it is being destroyed.

johnnyU on May 12, 2010 at 7:19 PM

Obama is never going to pick someone less liberal than Kagan. To him those people don’t exist. Like you and me.

This is the best we could have hoped for.

petunia on May 12, 2010 at 7:31 PM

An academia opportunist just like the clown that appointed her.

viking01 on May 12, 2010 at 8:10 PM

Shoot, maybe it’s just her smile. She really is a smiler.

AnninCA on May 12, 2010 at 11:03 AM

Crocodiles have a nice smile, too… Don’t expect me to trust them either…

Khun Joe on May 12, 2010 at 8:21 PM

Or not so secret liar about her orientation. Coy incomplete answers are confirmation. Besides, anyone who would shield criminal acts by government employees is not to be trusted. She should have been prosecuted under Clinton and now the current criminal in chief wants her on the supreme court. How typical of criminal leftists.

ray on May 12, 2010 at 9:21 PM

Secret centrist? Are you kidding?? She’s Obama in drag.

SukieTawdry on May 13, 2010 at 12:50 AM

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