Re: Kagan

1

I really liked Cosmos but the movie with Jodie Foster was pretty bad. The book may have been better, but I haven't read it.


Posted by: Moby Hick | Link to this comment | 05- 9-10 10:01 PM
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Now that's what I'm talking 'bout, Mobes.


Posted by: Stanley | Link to this comment | 05- 9-10 10:04 PM
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1: It had some crazy shit about God encoding messages in the value of pi as formatted on a computer screen, or something. Kind of dumb.


Posted by: essear | Link to this comment | 05- 9-10 10:04 PM
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It had Matthew McConaughey as a deep thinker of some sort.


Posted by: Moby Hick | Link to this comment | 05- 9-10 10:06 PM
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Does this have something to do with the first three minutes?


Posted by: parsimon | Link to this comment | 05- 9-10 10:07 PM
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Honestly, I don't see why I don't get the nod.


Posted by: nosflow | Link to this comment | 05- 9-10 10:08 PM
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6: too much of a blogging record. You need to be a cipher.


Posted by: PGD | Link to this comment | 05- 9-10 10:09 PM
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Cites.


Posted by: parsimon | Link to this comment | 05- 9-10 10:09 PM
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Yeah, but very little of my blogging is policy-relevant.


Posted by: nosflow | Link to this comment | 05- 9-10 10:09 PM
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8 to 6. Add a question mark.


Posted by: parsimon | Link to this comment | 05- 9-10 10:09 PM
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1: Somewhat related. The VLA's pretty impressive. Definitely worth a visit.


Posted by: teofilo | Link to this comment | 05- 9-10 10:11 PM
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11: I've been to Roswell, but I never saw a single alien. I'm not going back to New Mexico for aliens again.


Posted by: Moby Hick | Link to this comment | 05- 9-10 10:19 PM
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Yeah, stick with Colorado. Look for them off the highway near Great Sand Dunes National Park.


Posted by: essear | Link to this comment | 05- 9-10 10:23 PM
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From everything I've heard, I just find Kagan viscerally repulsive somehow. Workaholic apparatchik, careerist who never takes professional risks for her beliefs, climbs the power ladder dutifully, gets the nod because she's so Harvard. Everything I can't stand about the "meritocracy". I know a lot of people like that.

Of course, it's possible I'm just reading too much Glenn Greenwald. But I was really hoping for Diane Wood.


Posted by: PGD | Link to this comment | 05- 9-10 10:24 PM
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Anyway, overall, between Greenwald and Paul Campos and the CT thread and various other commentators on Kagan as nominee, the prospect is somewhat ... deflating.

Why was Diane Wood get bumped out of consideration in most discussions? I read a lengthy discussion of her history, qualifications and positives somewhere, though alas I do not remember where.


Posted by: parsimon | Link to this comment | 05- 9-10 10:26 PM
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I've been to Roswell, but I never saw a single alien.

You must not have been looking very hard.


Posted by: teofilo | Link to this comment | 05- 9-10 10:26 PM
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Why did Diane Wood get bumped out of consideration ...

And I see I'm pwned by PGD anyway.


Posted by: parsimon | Link to this comment | 05- 9-10 10:27 PM
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It seems clear that Obama is only interested in using his power to excite enthusiasm among people who hate him rather than people who like him, but the Crooked Timber thread looks totally wrongheaded. We're supposed to rate judges by the impact factor of their publication record now? I honestly don't think there was even a discussion like that about Harriet Miers. This notion has come out of left field.


Posted by: Cryptic ned | Link to this comment | 05- 9-10 10:28 PM
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16: I was there years ago, before the touristy stuff started.


Posted by: Moby Hick | Link to this comment | 05- 9-10 10:29 PM
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Anyway, here are some VLA pictures. I didn't go to the visitor center or anything; that's just what I could see from the highway.


Posted by: teofilo | Link to this comment | 05- 9-10 10:29 PM
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19: Well then.


Posted by: teofilo | Link to this comment | 05- 9-10 10:30 PM
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18: It doesn't seem crazy based on what I know about Kagan. She doesn't have much actual judicial experience, while the fact that she was a professor at Chicago and Harvard and then Dean of Harvard Law School suggests that academia plays a large role in her qualifications. Seems plausible to think that her academic publication record should play a role in assessing her, then. Things would be different if she were a highly experienced judge.


Posted by: essear | Link to this comment | 05- 9-10 10:31 PM
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Is this news or speculation?

I just wish Obama would surprise me once in a while.


Posted by: bob mcmanus | Link to this comment | 05- 9-10 10:37 PM
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Boo!


Posted by: Obama | Link to this comment | 05- 9-10 10:39 PM
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Oh, now, Uhura's Song is a fine publication record in itself.


Posted by: clew | Link to this comment | 05- 9-10 10:42 PM
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The best point I read at CT was the one about the nominee being able to handle the confirmation process, but I assume any bright 40+ lawyer should be able to recite the pablum the ritual requires.


Posted by: bob mcmanus | Link to this comment | 05- 9-10 10:43 PM
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The only good thing about nominating an ultra ambitious sycophantic cipher is that once she has achieved the summit of her ambitions she might prove to be a positive surprise. She no longer has any reason to either keep her views private or to tell higher ups what they want, because once she's on the SC there's nowhere else to move up to.

19 Actually, her main qualification is being a well regarded senior White House staffer. That got her the Harvard deanship where she apparently did a good job.

15.2 Better networking and being born a decade later.


Posted by: teraz kurwa my | Link to this comment | 05- 9-10 10:46 PM
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19 sb 22


Posted by: teraz kurwa my | Link to this comment | 05- 9-10 10:47 PM
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John McCain gave me the best back-rub I ever had.


Posted by: Obama | Link to this comment | 05- 9-10 10:56 PM
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Well, if I may be allowed to bust out with something or other: For fuck's sake, is this the best we can do? I understand that it's cool that Kagan is a woman and stands a good chance of actually passing. I also, however, get that we're supposed to trust people's judgment of her *without any significant record* on which to actually judge, that is, consider, her. This isn't just to do with her scant publication record; there are also no judicial opinions to look at. She's never been a sitting judge, nor argued a case in lawyer's shoes. This is very weird.


Posted by: parsimon | Link to this comment | 05- 9-10 10:57 PM
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I also, however, get that we're supposed to trust people's judgment of her *without any significant record* on which to actually judge, that is, consider, her. This isn't just to do with her scant publication record; there are also no judicial opinions to look at. She's never been a sitting judge, nor argued a case in lawyer's shoes. This is very weird.

It's almost as if she's been living her entire life with the goal of being appointed to the Supreme Court, and studiously avoiding any paper trail that could cause problems at her confirmation hearings.


Posted by: teofilo | Link to this comment | 05- 9-10 10:59 PM
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My paternal grandmother was a Kagan. It's a cognate of Cohen. As is Katz, which was the name of my maternal grandmother.


Posted by: k-sky | Link to this comment | 05- 9-10 11:01 PM
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All kinds of rumors that she's a lesbian too. All the baggage of a liberal without actually being one?


Posted by: PGD | Link to this comment | 05- 9-10 11:02 PM
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32 Is it the Russian h/g thing e.g. Garvard and Gamlet, or something predating documents in Cyrillic?


Posted by: teraz kurwa my | Link to this comment | 05- 9-10 11:05 PM
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18

... We're supposed to rate judges by the impact factor of their publication record now? ...

Since she has never been a judge how else are we going to rate her? Her performance as Solictor General doesn't seem to have generated good reviews. Like Harriet Miers her main skill appears to be making connections.


Posted by: James B. Shearer | Link to this comment | 05- 9-10 11:05 PM
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It's a cognate of Cohen.

Huh, I didn't know that. It would explain why it seems to be a reasonably common name, though.


Posted by: teofilo | Link to this comment | 05- 9-10 11:06 PM
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Crap. It appears to be a done deal.


Posted by: Jackmormon | Link to this comment | 05- 9-10 11:11 PM
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It's almost as if she's been living her entire life with the goal of being appointed to the Supreme Court, and studiously avoiding any paper trail that could cause problems at her confirmation hearings.

Yeah, yeah, I know. It's a sorry thing if we can only appoint to the Supreme Court people who have no discernible views about anything.


Posted by: parsimon | Link to this comment | 05- 9-10 11:12 PM
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Scott Lemieux is unimpressed with the choice, calling her a "blank-slate centrist" and the pick a form of "Ivy-League nepotism".


Posted by: Jackmormon | Link to this comment | 05- 9-10 11:18 PM
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I don't remember where I originally read it, but Wikipedia has a few tidbits:

The most usual last name for those of the priest tribe is "Cohen"/"Kahen"/"Kogan"/"Kohen"/"Katz" (a Hebrew acronym of Kohen Tzedek, or righteous Kohen)

see also Cohen as a surname

According to this it's what 34 says, the H/G thing (not you heebie)


Posted by: k-sky | Link to this comment | 05- 9-10 11:20 PM
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About Kagan, since it's a done deal: as long as she's going to help see to it that Roe v. Wade isn't overturned, I'm okay. I realize that may seem to make me a single-issue citizen, but honestly, that one's pretty damned important to me.


Posted by: parsimon | Link to this comment | 05- 9-10 11:36 PM
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Interesting post at Balkinization on an argument she made in an article on free speech and its relation to an argument she didn't make before the court in Citizens United. The suggestion is that her logic tends towards the Scalia/Roberts side on this case---which is sort of strange, given how unhappy Obama was with the outcome of this case.

One real downside with having someone who's been through the White House and the political establishment at such a high level is that they've already gotten comfortable with the lunatics. Kagan's is starting to seem like a liberal in the same sense that, oh, say George Packer is.


Posted by: Jackmormon | Link to this comment | 05- 9-10 11:44 PM
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The thing about Kagan is that it seems like no one really has any idea how she would rule on any issue, because she's never been a judge and she's been very careful to keep her opinions to herself throughout her career, so everyone's forced to resort to guesswork based on little tidbits. Ideally this would mean tough questioning at her confirmation hearings to determine what she's actually likely to do, but in practice that's not how confirmation hearings actually work. So she's basically a cipher, and also very likely to be confirmed. Which is disconcerting.


Posted by: teofilo | Link to this comment | 05- 9-10 11:48 PM
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so everyone's forced to resort to guesswork based on little tidbits. Ideally this would mean tough questioning at her confirmation hearings to determine what she's actually likely to do

In other words, we need our legislators to be Ask Culture people, not Guess Culture people?


Posted by: essear | Link to this comment | 05-10-10 12:04 AM
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On stealth candidates.


Posted by: fake accent | Link to this comment | 05-10-10 12:07 AM
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44: Exactly.


Posted by: teofilo | Link to this comment | 05-10-10 12:38 AM
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Eh. She'll be fine. Probably better than G or Breyer. I am super skeptical of the notion that publishing a bunch of law review articles says anything about how one might do as a justice. And it's not like we were going to get some hardcore Warren Court liberal lion no matter what -- those days are done.

I would have much preferred someone with actual experience on the district court or as a working trial lawyer, since that's what the Court is missing most of all. On the short list, I was rooting hard for Judge Thomas, as, I assume, was Carp. But she'll be fine, I think.


Posted by: Robert Halford | Link to this comment | 05-10-10 12:41 AM
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Well, my own surname means something like "Little Big Man" as translated from the Irish, which surely means that my grandfather should have been appointed to the board of water works and sanitation or something.

Whatever Kagan or Cohen might mean, isn't it kind of sad that people are grasping at potential meaning from the surname and/or its cognates?

I guess I'll settle for a reasonably competent person who's not a wingnut, which is kind of sad too.

My fantasy appointee is Pamela Karlan (don't know about the cognates), but I'm realist enough to realize that that will never happen.


Posted by: Mary Catherine | Link to this comment | 05-10-10 1:57 AM
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it's not like we were going to get some hardcore Warren Court liberal lion no matter what -- those days are done.

See, this attitude is just killing me. Sure, if you preemptively surrender on everything, then those days are done. But if you never even try to fight, then nobody knows what's possible. Kagan now defines the leftmost edge of acceptability, but there's no limit on how right wing a justice can be.

I'm getting awfully tired of Democrats unilaterally disarming before every single battle ever.


Posted by: apostropher | Link to this comment | 05-10-10 4:55 AM
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but the Crooked Timber thread looks totally wrongheaded. We're supposed to rate judges by the impact factor of their publication record now?

I am super skeptical of the notion that publishing a bunch of law review articles says anything about how one might do as a justice.

John Quiggin's question on the CT thread was more about how someone gets to be Dean of Harvard Law while having no scholarly profile, where you'd think it ought to matter as a necessary if not sufficient condition. That position gave her the platform to be a serious candidate for a position like SG and now a SC pick. He's not moaning about how in a just world impact factor should predict being on the court.


Posted by: Gonerill | Link to this comment | 05-10-10 5:02 AM
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She's not going to get confirmed. This is a perfect opportunity for Democrats from the Midwest to show their independence and say "no thanks on the jewish liberal atheist lesbian with no experience." But she's at 94% at Intrade.


Posted by: bjk | Link to this comment | 05-10-10 5:25 AM
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she's at 94% at Intrade

Intrade is excellent at predicting what yesterday's polls said.


Posted by: apostropher | Link to this comment | 05-10-10 5:28 AM
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this comment is about the only that gets at it:

"If done correctly, the job of a supreme court justice is not that hard. You and , say, 3 million other Americans are perfectly qualified to do the job. Really. What is there to the job? Case comes before you, summarize the case and case history, research precedent, make a preliminary finding, check to see if it contradicts the Constitution as maximally agreed upon. In light of the above, make final decision, outlining your reasons, all done with the assistance of a staff of first class scribblers. Lunch time. See, you can do the job. So can I. It is not like programming C++ or doing something hard."

i was never sure hwat the hubub about Hariette Myers was about either.

ANyway, i'm not sure how you create an elite not saturated in the own meritocratic awesomeness. not what i would have guessed in 1989.


Posted by: yoyo | Link to this comment | 05-10-10 6:15 AM
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49 - Even if you take as given that we're never going to get another Earl Warren on the court, it's pathetic that we get a ultra-confirmable cipher like Kagan now when Obama knows he's going to get at least one more bite at the S.C. apple under a significantly more Republican Senate, especially when there are much more substantively appealing people like Diana Wood (and others) available. Why is Kagan the justice we get when there are still 59 Democrats in the Senate?


Posted by: snarkout | Link to this comment | 05-10-10 6:20 AM
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All I wanted was to enjoy the continuing schadenfreude over George "Family Research Council" Rekers hiring a rentboy for his trip to Europe. Why did there have to be news?


Posted by: snarkout | Link to this comment | 05-10-10 6:28 AM
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I am disappointed in the selection. But, like PGD said in 14, perhaps I read Greenwald too much.

As others have said, is this all we can get???!??!

A stealth nominee? Someone who has not expressive more than three substantive thoughts of any of the important topics of the day? We are supposed to just cross our fingers and hope that she will be good.

Like apo said, I am tired of the Dems backing down before the fight. Bitches.


Posted by: will | Link to this comment | 05-10-10 6:39 AM
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the stealth doesn't seem like the bad part. Roberts worked out pretty well for republicans.

here is a fun trip down memory lane. http://www.anncoulter.com/cgi-local/printer_friendly.cgi?article=66


Posted by: yoyo | Link to this comment | 05-10-10 6:52 AM
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I am tired of people acting like being pro-choice is something to keep hidden or that the word liberal is something to run from.


Posted by: will | Link to this comment | 05-10-10 7:06 AM
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I think it's extremely unlikely that Kagan will be much different than a Diane Wood or another plausible nominee would be, and that folks who think they can perceive much daylight between the various center-left justices are kidding themselves (I mean, I'm sure they'll be different, but not in any obvious way anyone is capable of discerning right now). You're getting a center-left nominee no matter what, and there's just not that wide a range of views.

The downside of Kagan is that we don't know that much about her, she's 50, and turns into the next Byron White. The upside is that she's 50, a super skilled small-group politician, and can sometimes steal that fifth vote. I'd say the latter is way more likely than the former.

A "liberal Scalia," which is what I've seen some folks call for, would be a disaster. You don't want firey dissents; you want someone who can get you to five votes.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:19 AM
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59: Yeah, if she becomes Kennedy's horse whisperer, then that might not be so bad.


Posted by: oudemia | Link to this comment | 05-10-10 7:32 AM
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14, 56: I don't believe it's possible to read Greenwald too much, unless you place an inordinate value on maintaining a cheerful disposition.


Posted by: politicalfootball | Link to this comment | 05-10-10 7:33 AM
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I like Kagan 'cuz she looks like Brad DeLong.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 7:41 AM
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I don't have much to add but join those who had been hoping for Diane Wood.


Posted by: Di Kotimy | Link to this comment | 05-10-10 7:41 AM
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A "liberal Scalia," which is what I've seen some folks call for, would be a disaster. You don't want firey dissents; you want someone who can get you to five votes.

Scalia votes with a lot of majorities nowadays. Conservatives were wise to have cheered his nomination, and those of Thomas, Alito and Roberts. (Contra yoyo and Coulter, there was nothing stealth about Roberts at all.)

You claim that the days of the hardcore Warren Court liberal lion are done, but in fact what has ended are the days of the moderate Republican who is open to reason. And such Republicans, when they existed, were known to engage in dialogues with the liberal lions.


Posted by: politicalfootball | Link to this comment | 05-10-10 7:43 AM
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well the main difference isn't the 'stealth' variable, its the roberts is hard right, whereas most any obama nominee is center slightly left.


Posted by: yoyo | Link to this comment | 05-10-10 7:45 AM
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re: 65

By which you mean 'moderate right, but not as crazy right as the Republicans'.


Posted by: nattarGcM ttaM | Link to this comment | 05-10-10 7:51 AM
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53 is, imho, very wrong. If done right, the job should be very difficult. You should have to think really darned hard about what your ruling will mean. You don't have the luxury of just researching precedent and following it. For one, if there is clearly controlling precedent, the case doesn't come to you. Also, what with being supreme, you actually decide whether to continue to follow that precedent.

Honestly, I don't think the job of intermediate reviewing courts is easy *if done right.* But the S.Ct.? You damn well better be approaching it as hard work.


Posted by: Di Kotimy | Link to this comment | 05-10-10 7:53 AM
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You're getting a center-left nominee no matter what, and there's just not that wide a range of views.

The problem being that a center-left nominee is simply not enough to balance out the hard-right nominees on the court. While I consider myself to be center-left, this is a case where center-left doesn't cut it. I'd love to see a nominee far to the left of myself. The Supreme Court needs a diversity of viewpoints, and this nomination does little to achieve that.

Should have nominated McManus.


Posted by: Spike | Link to this comment | 05-10-10 7:54 AM
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I think it's extremely unlikely that Kagan will be much different than a Diane Wood

The downside of Kagan is that we don't know that much about her, she's 50, and turns into the next Byron White. The upside is that she's 50, a super skilled small-group politician, and can sometimes steal that fifth vote. I'd say the latter is way more likely than the former.

I would be interested in hearing your substantive basis for assessing these probabilities. As far as I can tell, you're just guessing, and it's outrageous that we should have to rely on such guesses in evaluating a nominee.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 7:56 AM
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Yeah, 65 gets it right. And it's important to remember that 100 percent of the people Obama was considering were in the center-left range. Not just as a matter of political expediency, either -- Obama has actually written and thought a lot about the kind of Justice he wants. Also it's important to remember how tiny the space is to the "left" of Kagan in the world of lawyers and judges.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:57 AM
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the fact that she was a professor at Chicago and Harvard and then Dean of Harvard Law School suggests that academia plays a large role in her qualifications

Not at all, unless by "qualifications" you mean "the things that make her look respectable on paper". The contents of the papers she's published certainly didn't play any role in it at all (although the absence of anything too controversial in them helped her, of course.) Her real qualifications are that she's very smart, and the president trusts her judgment.

I'll admit she's a stealth candidate, but she's one that I think is much more likely to veer unexpectedly liberal than unexpectedly conservative. I doubt any--and I mean any--former student of hers left her class with the impression that she was any sort of political moderate. And, I know there's no paper trail to "prove" it, but she's really incredibly fucking smart, and very persuasive. (And when I say "incredibly fucking smart", I mean as a very noticable standout in a room full of people with credentials comparable to hers.)

it's not like we were going to get some hardcore Warren Court liberal lion

Odd to see all the people lamenting the impossibility of this in the same breath as they say there's no good basis for us to evaluate Kagan's views. I wouldn't be surprised if that's exactly what we get. (We can't be sure, I'll grant you that, and a judge with an established record in that tradition would be even better. But there wasn't one anywhere on the short list--including Wood--and of the names on the short list, I'm pretty happy about Kagan.)


Posted by: Brock Landers | Link to this comment | 05-10-10 8:00 AM
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Here are some things about Kagan. Moderately interesting, possibly useful.

Lessig on Kagan.

Media Matters Fact Sheet on Kagan.


Posted by: oudemia | Link to this comment | 05-10-10 8:02 AM
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53, 67: I'm with Di here. I don't see how you can ever say "This job carries a lot of power, but isn't very difficult."


Posted by: rob helpy-chalk | Link to this comment | 05-10-10 8:02 AM
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70 -- I am guessing, but it's guesses all the way down. An example: Judge Thomas of Montana, a short-listed candidate. I already know about as much about him as one could reasonably know abou a potential Justice. I read 9th Circuit cases all the time, have met Judge Thomas a number of times in person, know some former clerks of his very well, etc., etc. I think he's a great, smart guy and would be a great Sct Justice. But, other than being a generally center-left kind of guy, do I have much of a clue as to how he'd rule on the widest range of issues facing the Supreme Court? Not really.

There's just a fair amount of guesswork that is part of the process.


Posted by: Robert Halford | Link to this comment | 05-10-10 8:06 AM
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As far as I can tell, you're just guessing, and it's outrageous that we should have to rely on such guesses in evaluating a nominee.

My theory of Republican Supreme Court picks is that it's always been important to the Republican Establishment to have a court that wouldn't overturn Roe. Hence "stealth" picks like Souter and, I assume, Miers - nominees designed to get past the Right, but still be relied upon not to overturn Roe.

The Bushes had good reasons for such a strategy - an overturn of Roe would energize an awful lot of Democrats, and turn a few Republicans to Democrats, without doing any political good whatsoever.

What's Obama's excuse? That he doesn't actually have much in the way of liberal sympathies? Why should I consider that acceptable?


Posted by: politicalfootball | Link to this comment | 05-10-10 8:06 AM
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As a qualification to 72, I will freely admit that "the president trusts her judgment" is becoming something of a negative for me, insofar as it implies that she might actually be much more moderate than I would have guessed in the adsence of that fact, and more moderate than I would prefer. Because our president is more moderate than I'd prefer, and it's become increasingly clear throughout his presidency that his moderation isn't just an image his projects for political expediency, but is reflective of his core values. In which case, yeah, the criticisms upthread are valid, but are sort of trivial. We get moderate-liberal justices to counter hard-right justices because we have moderate-liberal presidents to counter hard-right presidents. It would be good if we had more liberal justices; it would also be good if we had more liberal presidents, and electing the latter would probably take care of the former. But we've got what we've got. The point of 72 is that, again, given the set of names that were floating around, I'm happy with Kagan, and I do think there's a much greater chance she'll end up being an unexpectedly liberal vote than an unexpectedly conservative one.


Posted by: Brock Landers | Link to this comment | 05-10-10 8:10 AM
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76 qualified 71. I think a comment was deleted.


Posted by: Brock Landers | Link to this comment | 05-10-10 8:12 AM
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"how tiny the space is to the "left" of Kagan in the world of lawyers and judges. "

yeah, i didn't really get this until i had a legislation clinic; despite 80% of people being democrats, there was only one other person who ever offered even slightly leftish opinions. lots of people who really believe in the system.


Posted by: yoyo | Link to this comment | 05-10-10 8:14 AM
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I stand by my point that Kagan is a sensible nominee only for a much more Republican Senate. Contra 59, Diane Wood has a sharply more liberal track record, is clearly confirmable now, iand had demonstrated that she capable of wooing conservative judges to agree with her. Why blow your "maybe she's secretly liberal?!" pick -- I think 71 is correct-ish, although I suspect Kagan will prove a mushily centrist vote on state power issues -- when you have 59 Democrats in the Senate? Wood isn't Earl Warren, but she's a positive liberal voice with a history. She's a good potential justice you can confirm now and won't be able to when Ginsburg retires; I think part of the dismay -- though not from Greenwald, who is (mostly admirably) single-mindedly focussed on civil liberties issues -- is thinking about who you get in 2010 or 2011 when there are six fewer Dem Senators.


Posted by: snarkout | Link to this comment | 05-10-10 8:19 AM
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I don't know how 'job has actual consequences' necessarily implies difficulty, at least of the kind that 'qualifications' would be useful for deciding one's ability for.


Posted by: yoyo | Link to this comment | 05-10-10 8:21 AM
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CA was just telling me he had to deal with Duns Scotus today and I thought he was saying "Dumb SCotUS" and was baffled as to how the Kagan pick was going to have such an effect on him.


Posted by: oudemia | Link to this comment | 05-10-10 8:23 AM
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Diane Wood has a sharply more liberal track record

Erm, well, I guess, but only insofar as Kagan doesn't really have a track record, period.

I do concede that as a point in Wood's favor, and I wouldn't have been unhappy with Wood. Although 10 years older is a big deal.


Posted by: Brock Landers | Link to this comment | 05-10-10 8:24 AM
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Kicking all the military recruiters off of Harvard's campus was, by the way, not at all a tentitive, moderate, compromising position.


Posted by: Brock Landers | Link to this comment | 05-10-10 8:33 AM
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It wasn't tentative, either.


Posted by: Brock Landers | Link to this comment | 05-10-10 8:33 AM
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I'm prepared to believe that Kagan may, in fact, be some kind of stealth liberal. But I also find myself thinking: If you don't know who the sucker is at the poker table, then it's probably you.


Posted by: politicalfootball | Link to this comment | 05-10-10 8:39 AM
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Kicking all the military recruiters off of Harvard's campus was, by the way, not at all a tentitive, moderate, compromising position.

Not at all?

Harvard students had access to military recruiters during her entire tenure as dean.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 8:42 AM
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I'm having a hard time developing an opinion here. (Other than that her becoming a justice raises the reputational value of my high school degree, so I'm for it.) Mostly, I have very little faith in the Court as a source of political progress from where we are now; if I were setting up the government, I'd trade leftists on the Court for leftists in the executive or Congress in a heartbeat.


Posted by: LizardBreath | Link to this comment | 05-10-10 8:42 AM
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the only thing that strikes me as immoderate is that there is still a major employer in the US that proudly discriminates against people for who that hook up with. though the idea of military changing policy because of some ban is amusing.


Posted by: yoyo | Link to this comment | 05-10-10 8:50 AM
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isn't the most important thing her life expectancy?


Posted by: yoyo | Link to this comment | 05-10-10 8:51 AM
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It's obviously no reason to support or oppose any nominee, but it really is weirdly anomalous that in a country that has elected one Catholic and no Jewish presidents, this will make a Supreme Court composed entirely of Catholic and Jewish justices. With only Sotomayor keeping the religious divide from mirroring the partisan divide.


Posted by: apostropher | Link to this comment | 05-10-10 8:52 AM
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All kinds of rumors that she's a lesbian too. All the baggage of a liberal without actually being one?

Just like Sotomayor. Thus we are initially unhappy with her for objective reasons but rally around her for irrational reasons as she is attacked by our enemies.


Posted by: Cryptic ned | Link to this comment | 05-10-10 8:54 AM
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Repeating myself: If, in fact, Kennedy is being given a handholder, that really might be worthwhile. (Possibly moreso than writing really awesome and righteous dissents.)
I sound like I'm defending her; I'm not, and I am weirded out and/or contemptuous of folks who spend a lifetime playing their cards that close to the vest. To me it speaks of either a lack of character or a creepy abundance of ambition. So, you know, Team Karlan. But I'm not pulling all my hair out yet.


Posted by: oudemia | Link to this comment | 05-10-10 8:55 AM
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The link in 86 is factually accurate but very misleading, in that it dramatically downplays the whole incident. I understand that's the point of it--it looks like it's intended to counter right-wing hysterics on the issue--but it actually was a big issue. Take, for example, your quoted sentence: "Harvard students had access to military recruiters during her entire tenure as dean." Um, yeah--she couldn't exactly forbid Harvard students from meeting with military recruiters. But they couldn't participate in the structured on-campus interviewing, which is how ~95% (number from my ass) of students get their jobs.

And she only caved and let them back on campus under intense pressure from the university--she was willing to let the law school lose every penny of federal funding (which isn't much, of course), but when it became clear that the rest of the university would lose all its federal funding as well (the medical school, etc.), she had no choice but to cave. I suppose she could have resigned her deanship. She gave every impression of being very personally upset about the decision, though.


Posted by: Brock Landers | Link to this comment | 05-10-10 9:01 AM
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I am weirded out and/or contemptuous of folks who spend a lifetime playing their cards that close to the vest.

This, I think, is unfair to her. Her lack of a more expansive public record may be a good reason to think she's a poor choice for the Court, but I can't see it as evidence that she was deliberately concealing her views out of ambition. It looks to me much more like she's just had jobs that didn't necessitate developing a public record.


Posted by: LizardBreath | Link to this comment | 05-10-10 9:01 AM
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Willing to be put up in the press as a vehemently anti-military elitist, while actually being anti-military only in symbolic ways. Perfect for comment #91.


Posted by: Cryptic ned | Link to this comment | 05-10-10 9:03 AM
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94: I get that she's hasn't had many positions that would give her a public record. I'm thinking more of the many people, fans and friends!, who have said that they have never heard to offer an opinion on any controversial subject even in private or in a classroom. She's disavowed, as far as I can tell, memos she wrote as Marshall's clerk wherein she did profess potentially controversial opinions (on things like public money to faith-based groups, etc.).


Posted by: oudemia | Link to this comment | 05-10-10 9:05 AM
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actually being anti-military only in symbolic ways

I don't know, but I doubt she's anti-military at all, sadly. She's vehemently anti-DADT, though. (And anti-DOMA.)


Posted by: Brock Landers | Link to this comment | 05-10-10 9:06 AM
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I'm thinking more of the many people, fans and friends!, who have said that they have never heard to offer an opinion on any controversial subject even in private or in a classroom.

Oh, wow. That is different, and I hadn't seen it. Yeah, that's certainly weird.


Posted by: LizardBreath | Link to this comment | 05-10-10 9:10 AM
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I'm thinking more of the many people, fans and friends!, who have said that they have never heard to offer an opinion on any controversial subject even in private or in a classroom.

Are these private conversations you've had with her fans and friends, are have people said this publicly? If the latter, who? It doesn't match my impression in the least.


Posted by: Brock Landers | Link to this comment | 05-10-10 9:13 AM
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Kogen!


Posted by: heebie-geebie | Link to this comment | 05-10-10 9:14 AM
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"are have people said this publicly" s/b "or have people said this publicly"


Posted by: Brock Landers | Link to this comment | 05-10-10 9:14 AM
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99: I'm trying to find what I was reading, but I am LeechBlocked out of that browser so it is trickier. It was along the lines of colleagues and students being asked about her opinions, and everyone having a vague notion that she agreed with them (no matter their political beliefs), but being unable to offer any substantive comment of hers, etc. to justify their having that impression.


Posted by: oudemia | Link to this comment | 05-10-10 9:19 AM
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71 Her real qualifications are that she's very smart, and the president trusts her judgment.... And, I know there's no paper trail to "prove" it, but she's really incredibly fucking smart, and very persuasive. (And when I say "incredibly fucking smart", I mean as a very noticable standout in a room full of people with credentials comparable to hers.)

Being incredibly fucking smart sounds to me like a terrible justification for getting to be a Supreme Court justice, quite aside from the fact that given how little she's written or said publicly I don't understand how it's possible to judge her smartness. If "incredibly fucking smart" is the criterion, let's put Ed/ward Wit/ten on the court; at least he's demonstrably liberal.


Posted by: essear | Link to this comment | 05-10-10 9:20 AM
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Ah, fuck, I screwed up the italics. "real" was unitalicized to match Brock's italicized emphasis, the rest of 103.1 should be italicized.


Posted by: essear | Link to this comment | 05-10-10 9:22 AM
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I've seen the claim reported that oudemia cites in 96, though I can't recall where.

All it says to me is that her friends are good friends. I'm quite confident that when my nomination comes, my fans and friends won't out me as a liberal - or as a conservative.


Posted by: politicalfootball | Link to this comment | 05-10-10 9:23 AM
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102, cont: But no, no private conversation I've had, and based on things I read yesterday that I am trying to dig up now.


Posted by: oudemia | Link to this comment | 05-10-10 9:23 AM
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I misread "He is a leading researcher in superstring theory" as "He is a leading research in surprising theory" and thought, well, that is impressive.


Posted by: nosflow | Link to this comment | 05-10-10 9:24 AM
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The Lessig article () is pretty clear; I have a lot of respect for Lessig, he thinks clearly and takes courageous stances on large issues.

Saying as little as possible always is SOP within large organizations. The primary audience for any statement is not some casual outside observer, but the people within the organization who keep track of errors for their own gain.


Posted by: lw | Link to this comment | 05-10-10 9:29 AM
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quite aside from the fact that given how little she's written or said publicly I don't understand how it's possible to judge her smartnessi

Things she's said privately? (And here, "privately" doesn't only mean "privately", just outside of the permanent record. In the classroom, to colleagues in Clinton's white house, etc.)


Posted by: Brock Landers | Link to this comment | 05-10-10 9:31 AM
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Yeah, I'd be interested in the links oudemia finds, but I think 108 is at least partial refutation of 96. And, fwiw, every liberal I know who knows Kagan is very happy with the choice.


Posted by: Brock Landers | Link to this comment | 05-10-10 9:36 AM
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108: I found that article heartening, too, but he doesn't offer any evidence at all for his assertion that she is a progressive, except for the military recruiters case. He says he knows she's a progressive, but says we can't judge that from her time as a Clinton adviser, because the advice she gave there isn't necessarily her own opinion, and that we can't judge it from her time as SG, because, again, that isn't necessarily her own take. But that's it.


Posted by: oudemia | Link to this comment | 05-10-10 9:37 AM
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But he says that he knows she's a progressive from having himself directly interacted with her. He may be deceived about what she'll actually do on the Court, but he's clearly not saying "Funny, I've known her for twenty years, and I don't know what she thinks on any controversial issue."


Posted by: LizardBreath | Link to this comment | 05-10-10 9:39 AM
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110: Did you read it? I think it's practically proof of 96. He says she's a progressive, but doesn't say why, but says we shouldn't infer she isn't from anything else she's done.


Posted by: oudemia | Link to this comment | 05-10-10 9:40 AM
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The Lessig article and Brock's 109 are not convincing at all; they boil down to "people who know her think she is great". Maybe this is a cultural point about law that I'm just not seeing, but shouldn't there be a more substantive record people can point to? Shouldn't we be concerned that someone being appointed to a very public post can only be praised on the basis of private encounters? There's very little that's concrete here.


Posted by: essear | Link to this comment | 05-10-10 9:40 AM
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Stay tuned for this afternoon's HuffPo article by Richard Posner that endorses her in equally glowing and vague terms.


Posted by: Cryptic ned | Link to this comment | 05-10-10 9:43 AM
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112: Right. The thing I read said people came away believing she believed what they believed, but could offer no comment or action that confirmed it. Non-progressives say the same thing about her.

This from Paul Campos is one of the things I've read, but not the only one.


Posted by: oudemia | Link to this comment | 05-10-10 9:43 AM
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I don't find the article particularly heartening. He basically confirms that we have no basis for evaluating her. Her history doesn't show her to be too conservative, because it doesn't show anything at all. We do have Lessig's own word that she is a progressive and will be a fine justice, but he also thinks Richard Posner is the greatest judge of our time.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 9:45 AM
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108 is quite good.


Posted by: yoyo | Link to this comment | 05-10-10 9:46 AM
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It is better than "people who know her thinks she's fascist and she's rude to waiters."


Posted by: Megan | Link to this comment | 05-10-10 9:47 AM
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117: Well, it's heartening in the sense of I WANT TO BELIEVE. But, as someone who started in this thread as Kagan-agnostic, I am becoming less so by the second. I hope Lessig's right.


Posted by: oudemia | Link to this comment | 05-10-10 9:48 AM
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i meant the post not the linked article.


Posted by: yoyo | Link to this comment | 05-10-10 9:49 AM
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Non-progressives say the same thing about her.

The Campos article you link has a conservative saying "I think she'd be a centrist." That's not quite what you're saying -- from a conservative, about a liberal, I'd read that as "We disagree about stuff, but I don't think she's crazy."

And the lack of specifics in Lessig's piece seems totally unsurprising to me -- this is a moment when if he names her position on any particular issue, he's screwing her over. That doesn't indicate at all that he doesn't know specifics, just that he's not giving them immediately before a nomination fight.

Everyone who's saying that we shouldn't have to trust her friends' reports of what they think of her politics is right; we've got no real reason to trust anyone. But I don't see any reason to think that she's unusually slippery in person.


Posted by: LizardBreath | Link to this comment | 05-10-10 9:51 AM
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122: Huh. Well, I'm saying Orrin Hatch and Bill Kristol think she's brilliant and reasonable. The conservative finds her -- positively -- centrist and non-political. I don't see how one is reasonably openly progressive and gets those responses. Maybe she is amazingly brilliant and can for hardcore conservatives bestow a patina of reasonability to fully progressive positions. That would be great.


Posted by: oudemia | Link to this comment | 05-10-10 9:55 AM
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The thing I read said people came away believing she believed what they believed, but could offer no comment or action that confirmed it. Non-progressives say the same thing about her.

Evidence on that last point is what I'd be very interested in seeing. In the links in your link, Fried isn't saying he thinks she agrees with his politics (quite explicitly the opposite), just that she's smart that she's fair. And Liz Cheney just said she was a good professor (and then starting criticizing her about the military recruiting thing).


Posted by: Brock Landers | Link to this comment | 05-10-10 9:55 AM
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The conservative finds her -- positively -- centrist and non-political.... Maybe she is amazingly brilliant and can for hardcore conservatives bestow a patina of reasonability to fully progressive positions.

This is exactly Lessig's point, you realize. Conservatives aren't put off by her views. She's personable enough that she gets a standing ovation from the Federal Society when she says, smiling, "You are not my people."


Posted by: Brock Landers | Link to this comment | 05-10-10 9:59 AM
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But I don't see any reason to think that she's unusually slippery in person.

Yes and no, right? She's clearly intensely ambitious in both an inside-the-Beltway and ivory-towers-of-academe sort of way. Such people tend to be pretty slippery; they don't like to get tied to controversial positions. Beyond that, I'm squarely in the "we have no idea what to think of about her ideological underpinnings" camp. But I am surprised that people here aren't more focused on the fact that she's clearly Obama's pick. Which is to say, they've run in the same circles for a very long time. Given that, I expect he knows more about her views than nearly anyone else in the country odes. Make of that what you well. It certainly doesn't comfort me in any way. But of course, people change once they're ensconced on the Court. So maybe she'll be less the milquetoast moderate than I expect. I mean, she has Brock's ringing endorsement!


Posted by: ari | Link to this comment | 05-10-10 9:59 AM
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"Conservatives aren't put off by her views." s/b "Conservatives aren't put off by her personally, and are willing to listen to her views, which she has a knack for framing in a way that engages them."


Posted by: Brock Landers | Link to this comment | 05-10-10 10:00 AM
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Or country does. Odes are nice too, though.


Posted by: ari | Link to this comment | 05-10-10 10:00 AM
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I mean, she has Brock's ringing endorsement!

See 76. Which I don't mean to downplay. I just think a lot of the criticism of her is off-base.


Posted by: Brock Landers | Link to this comment | 05-10-10 10:01 AM
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Since LB and Brock both seem to think it's reasonable, I guess I don't understand how law works. For someone to reach the age of 50, serve in several prominent positions, and get a nomination for the Supreme Court without having anything tangible one can point to just seems deeply weird to me. If that's what it takes to get past the confirmation process, I guess I wouldn't trust anyone confirmable. Though in the case of Sotomayor there was substantially more information in the form of appellate decisions, so it's clear that one doesn't have to be a complete cipher to be confirmed.


Posted by: essear | Link to this comment | 05-10-10 10:02 AM
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Based on this thread I would hone in on Di or LB for SCOTUS - at least based on their collected writings and actual legal and life experience. Megan - Secretary of Interior or Agriculture.


Posted by: William Howard Taft | Link to this comment | 05-10-10 10:05 AM
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I don't know how 'job has actual consequences' necessarily implies difficulty, at least of the kind that 'qualifications' would be useful for deciding one's ability for.

It's not simply a question of the consequences. I suppose it's possible for a job to have serious consequences yet be very easy to do. But the nature of the job of a Supreme Court justice isn't just "flip a coin" or "go with your gut and then go grab a beer." The law isn't just easy arithmetic, carry to 2, and then you have a definitive right answer. You can disagree about which "qualifications" are most useful to doing the job well. But the idea that a trained monkey could do it is a terribly defeatist view of the rule of law.

but he also thinks Richard Posner is the greatest judge of our time

Perhaps I just have an unshakable 7th Circuit bias, but Richard Posner is genuinely a very sharp judge. You can (and I often enough do) disagree with his conclusions or his underlying philosophical presumptions. But there is no question that he (a) is intelligent, (b) is a very good writer, and (c) gives a great deal of thought to how he decides the cases before him.


Posted by: | Link to this comment | 05-10-10 10:06 AM
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129: I think, Brock, the massive number of typos and infelicitous phrases in my comment renders it entirely moot. So there's no reason to quibble about the details.


Posted by: ari | Link to this comment | 05-10-10 10:08 AM
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130: For someone to reach the age of 50, serve in several prominent positions, and get a nomination for the Supreme Court without having anything tangible one can point to just seems deeply weird to me.

She's certainly light in the public record for an SC nominee, no argument there. But while she's had prominent jobs, they haven't been jobs where she was setting policy -- nothing she's done would spontaneously generate a record of her position on controversial issues. Judges and politicians have self-generating records on issues, staffers and advocates less so.


Posted by: LizardBreath | Link to this comment | 05-10-10 10:09 AM
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132 was me. As for 131, I am flattered to be considered -- and yet, note that Pres. Taft felt the need to go presidential before making such an endorsement.


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:09 AM
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127: Mmmmaybe! Conservatives like her! I don't know what her views are except that lots of people I don't find at all reasonable think she is quite reasonable. How does one frame "I am pro-choice" to make it delightsome to one who is anti-choice? I suspect one does this in ways that would piss me off. But again, I want to believe that Lessig is right and other folks are wrong, but I have no rational reason to do so, other than my cheery na(t)ive optimism. And I am with essear, there comes a point where that kind of ideological anonymity becomes creepy to me. I thought it was creepy when John "I made in a vat and raised in a bubble in order to be a right-wing SC justice" Roberts came on the scene. And he had more of a record.


Posted by: oudemia | Link to this comment | 05-10-10 10:09 AM
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nothing she's done would spontaneously generate a record of her position on controversial issues.

Except in the case of the work she did as Justice Marshall's clerk that she has since disavowed.


Posted by: oudemia | Link to this comment | 05-10-10 10:11 AM
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Wait, this is a bunch of pseudonyms expressing surprise about reticence in the permanent record?

Wasn't there like three days ago a freewheeling discussion about information control on facebook? Who benefits from candor exactly? For most of the big decisions I' have been close enough to see, people are careful about what their names are attached to. Allocation of public credit and blame is pretty separate from actually doing the work.


Posted by: lw | Link to this comment | 05-10-10 10:11 AM
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Yeah, I'm all for judges not going around advertising how they can be expected to vote on cases that haven't yet but might someday come before them. Justice Stevens spoke out on this recently (while, ahem, also saying nice things about Diane Wood).


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:15 AM
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How does one frame "I am pro-choice" to make it delightsome to one who is anti-choice? I suspect one does this in ways that would piss me off.

Most likely by not discussing it with them, which she's likely never had reason to do.


Posted by: Brock Landers | Link to this comment | 05-10-10 10:16 AM
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140: I was just using that issue as an example, but fine. So no one has any idea as to her views.


Posted by: oudemia | Link to this comment | 05-10-10 10:19 AM
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Maybe if we write a collective letter to Obama telling him how incredibly fucking smart LB is, and how good she is at breaking down an issue and explaining her view clearly and persuasively, he'll nominate her to the court?


Posted by: essear | Link to this comment | 05-10-10 10:20 AM
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I wonder if she has any thoughts on bagels in DC.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 10:20 AM
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Here's the thing. I am pro-choice. Increasingly so. But that doesn't necessarily mean that if an abortion case came before me in my imaginary role as Justice Kotimy that I would automatically vote in a way that would be embraced as pro-choice. I am also pro-separation of powers and rule of law and stare decisis and many other things. How I might rule on any given case is utterly unknowable to me until I've read the briefs, the record, and heard the oral arguments.


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:21 AM
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The thing that gets me about Posner is his intellectual hubris. He is clearly able to synthesize surreal amounts of information rapidly and form reasonable sounding opinions about that information. But this leads him to start writing whole books on subjects that he has no long term experience with, and these books become influential. The off handed opinions of a quick study then become major movements in legal scholarship. Its pernicious.


Posted by: rob helpy-chalk | Link to this comment | 05-10-10 10:22 AM
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123 suggests what would perhaps make her a decent nominee when Ginsburg retires in 2011. Not so much this year.

132: I understand that Posner is smart and thinks very hard about things. However, I can't see simultaneously concluding about a judge that he is (a) frequently wrong and (b) the greatest judge of our time.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 10:23 AM
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142: Because my public record as a low-level trial court litigator tells you everything anyone would want to know about how I feel about the issues. (Actually, in my current job, I spend a lot of time taking (perfectly conventional) positions on the Eleventh Amendment that I really disapprove of. They're right in terms of the current SC precedent, but the precedent is all wrong.)

(And aw, shucks to the flattery, which I can't possibly get enough of.)


Posted by: LizardBreath | Link to this comment | 05-10-10 10:24 AM
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137 con't: And that isn't to say that one can't reasonably disavow what one wrote decades ago, just that what she wrote then some of the only actual progressive thought in her public record. And, as she herself said, what she wrote there wasn't necessarily her opinion any, just stuff put out there to help a big old lefty do his job:

"Let me step back a little if I may and talk about my role in Justice Marshall's chambers...We wrote memos on literally every single case in which there was a petition...I don't want to say there is nothing of me in these memos, but I think in large measure these memos were written in the context of-you're an assistant for a justice, you're trying to facilitate his work, and to enable him to advance his goals and purposes as a justice...I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who-let us be frank-had very strong jurisprudential and legal views...and he was asking us in the context of those cert. petitions to channel him, and to think about what cases he would want the Court to decide..."


Posted by: oudemia | Link to this comment | 05-10-10 10:26 AM
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Allow me to trot out, as I always do, what my undergrad advisor said about Posner, to wit, he writes an article every day (or was it book every week?) and when you do that you don't have time to think.


Posted by: nosflow | Link to this comment | 05-10-10 10:26 AM
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148 is missing an "is" and a "way."


Posted by: oudemia | Link to this comment | 05-10-10 10:27 AM
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As far as I know (not having seen their medical information) Kagan has significantly the largest life expectancy among the leading candidates (only 50 and female). Therefore, she was the best pick. Gobama!


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 05-10-10 10:28 AM
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I am also pro-separation of powers and rule of law and stare decisis

Stare decisis is kind of funny to me; you wouldn't in ordinary deliberation stand by a decision that you had since come to think was wrongly made, and while you might simply not reöpen the matter for new consideration, if you did that because you thought you might find it to have been wrongly made, that's already enough to smack of (!!) intellectual dishonesty.


Posted by: nosflow | Link to this comment | 05-10-10 10:29 AM
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146(b): I guess my nuance on that it that, while there are certainly cases where I've disagreed with Posner, I cannot think of any off the top of my head where I would boldly say he was "wrong." There are a great many legal issues without clear right answers. I like judges who can write opinions that I may disagree with but can still walk away thinking, "Yeah, I guess I can see how he went that way."

(My absolute favorite state court judge is a judge who has ruled against me far too many times and has the distinction of being the only judge ever to do so in a way that left me absolutely convinced that she was absolutely correct to rule against me.)


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:29 AM
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You can expect me to disavow 152 during confirmation hearings, though.


Posted by: nosflow | Link to this comment | 05-10-10 10:29 AM
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148: Couple of things. First, what she says about the context in which the memos were written seems obviously true -- while it would be nice, now, to have a clearer record of her independent thought, memos written to be in accordance with Marshall's views aren't going to be it.

Second, this is a failure of my Google skills -- I've seen the quote about her walking away from those memos, but I haven't seen what they said that she's now disavowing. Anyone have a link?


Posted by: LizardBreath | Link to this comment | 05-10-10 10:32 AM
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151: I don't understand why, say, 30 years of a barely acceptable justice should be preferable to 20 years of an affirmatively desirable justice plus a 50-50 chance of a comparable replacement at retirement.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 10:34 AM
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Stare decisis is kind of funny to me; you wouldn't in ordinary deliberation stand by a decision that you had since come to think was wrongly made, and while you might simply not reöpen the matter for new consideration, if you did that because you thought you might find it to have been wrongly made, that's already enough to smack of (!!) intellectual dishonesty.

Stare decisis *is* funny. But important. We don't want the law changing willy nilly every time some new panel takes a new look at the question -- the rule of law does require some stability. But sure, there will be instances where stability be damned, it's clear that the existing rule was crap and can't be allowed to continue. See, eg., Plessy v. Ferguson, Korematsu v. United States. Stare decisis is not absolute; but it is important.


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:36 AM
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Plus, I'm not even 30.


Posted by: nosflow | Link to this comment | 05-10-10 10:37 AM
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155: I can dig it up, but one of them was to do with the Establishment Clause and whether faith-based groups should be given $$ for adoption centers and child care, etc.


Posted by: oudemia | Link to this comment | 05-10-10 10:38 AM
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this is a failure of my Google skills

When you are Justice Breath, you will have a clerk to find that for you.


Posted by: Di Kotimy | Link to this comment | 05-10-10 10:39 AM
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155: Here, at pages 162 to 164 (using the page numbers printed at the top of each page, not the PDF file numbers).

There were a fair number of people who got burned by the unexpected early release of the Marshall papers.


Posted by: widget | Link to this comment | 05-10-10 10:40 AM
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I wish I knew Kagan's thoughts on these pants.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 10:41 AM
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Being incredibly fucking smart sounds to me like a terrible justification for getting to be a Supreme Court justice,

There's nothing wrong with smart, or even with incredibly fucking smart. What makes me nervous is when I hear something like "brilliant and original legal mind." Which I haven't heard about Kagan, so.

I dunno. If there were anything really damaging, surely McManus would have linked to it by now.


Posted by: Mary Catherine | Link to this comment | 05-10-10 10:42 AM
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156: Certainly there are extreme cases where a potential justice could be too moderate for it to be worth an extra 10 years, but I'd need to think she was to the right of most or all of the democrats on the court. I haven't seen people argue that.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 05-10-10 10:43 AM
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130 -- It's not like Kagan has been doing nothing. She's had powerful, important jobs in which she's been responsible for dealing with big issues, and has by all accounts done a spectacularly good job.

LB and Brock have made this point already, but most legal jobs are not ones in which one develops a "record" of one's views as to substantive issues. Even being an appellate court judge does not really do that -- you are, ultimately, an inferior-level judge and do not (and should not) have the luxury of setting policy. Appellate opinions do leave somewhat more of a paper trail, of course, but those opinions are not simple indicators of how one would rule on the Supreme Court and should not be read as such.

Being a law professor is different -- there, you do get a chance to say what you want. However, frankly, IMO there is if anything probably a negative correlation between the number of law review articles one has published and one's fitness to serve as a judge, particularly a Supreme Court justice. I would be very uncomfortable with a Justice who has a large number of academic articles indicating pre-judgment on a range of issues.

And I agree 100% with everything Di is saying in this thread.


Posted by: Robert Halford | Link to this comment | 05-10-10 10:43 AM
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I wish I knew Kagan's thoughts regarding the location of my notebook.


Posted by: nosflow | Link to this comment | 05-10-10 10:43 AM
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And the risks of a stealth candidate become more clear: it now comes out that Kagan didn't learn to drive until her late 20s. I'm rethinking the positive things I said upthread. As Ed Whelan notes, this "nicely captures Elena Kagan's remoteness from the lives of most Americans."


Posted by: Brock Landers | Link to this comment | 05-10-10 10:44 AM
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Is 167 serious?


Posted by: nosflow | Link to this comment | 05-10-10 10:45 AM
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I wish I knew Kagan's pseud.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 10:46 AM
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Is 168 serious?


Posted by: Sifu Tweety | Link to this comment | 05-10-10 10:46 AM
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I'd guess that 167 is an attempt to troll LB.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 05-10-10 10:46 AM
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Although Jeffrey T00bin vouching for her character is kind of unnerving.*

*This is a joke, based on the case in which his mistress is suing him for child support and says that when she told him she was pregnant, he told her to get an abortion and that he would pay for it, but that he would then pay for her to use a sperm donor to have another baby, if she wanted.


Posted by: oudemia | Link to this comment | 05-10-10 10:47 AM
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This comment is seriously serious.


Posted by: apostropher | Link to this comment | 05-10-10 10:47 AM
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162: She thinks they make your ass look big.

166: She says to try to remember the last time you wrote in it.


Posted by: ari | Link to this comment | 05-10-10 10:48 AM
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169: Btock.


Posted by: oudemia | Link to this comment | 05-10-10 10:48 AM
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Hey, I had a license when I was twenty (maybe twenty-one, I don't remember if it was after my birthday or not.) Didn't actually know how to drive more than making the required three right hand turns, but I had a license.


Posted by: LizardBreath | Link to this comment | 05-10-10 10:48 AM
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169: She says that you shouldn't be so nosy. And also that she didn't get this far in life by leaving a pixel trail.


Posted by: ari | Link to this comment | 05-10-10 10:49 AM
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I wish I knew if Kagan thought this comment was serious.


Posted by: Walt Someguy | Link to this comment | 05-10-10 10:49 AM
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168: I couldn't even begin to think about knowing how to answer that question.


Posted by: Brock Landers | Link to this comment | 05-10-10 10:50 AM
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It is pretty ridiculous that every Justice except Kennedy is basically from the Boston-Washington corridor (yeah, Roberts was born in Indiana and Breyer in San Francisco, but they are both echt-Easterners at this point).

And that they all went to either Harvard or Yale. And that there are no district court judges or folks with substantial civil trial experience. The last sentence is the most worrisome and biggest deal to me.


Posted by: Robert Halford | Link to this comment | 05-10-10 10:50 AM
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175: Kagan is ToS. I can't wait to read her dissents.


Posted by: apostropher | Link to this comment | 05-10-10 10:50 AM
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179 sets up Brock nicely for his future justiceship.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 10:51 AM
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it now comes out that Kagan didn't learn to drive until her late 20s.

OK, that changes my mind. I fully support Kagan now.


Posted by: essear | Link to this comment | 05-10-10 10:51 AM
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159, 161: On looking at the bit of the hearing record, I'd call the position she's calling 'the dumbest thing she ever heard" pretty dumb, and more dumb than progressive. Walking away from a position that religious organizations should be absolutely precluded from receiving government funding for reproductive health care sounds right to me.

If she were walking away from sensible progressive positions in the Marshall memos, I'd worry more. But this seems okay.


Posted by: LizardBreath | Link to this comment | 05-10-10 10:52 AM
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180: Word.


Posted by: Megan | Link to this comment | 05-10-10 10:53 AM
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I so don't get Harvard. Their admissions from my high school weren't the smartest kids at all. (Stanford took those kids, every one that I thought was scary-smart and none besides.) Harvard took the second tier kids, so I still don't get why it all our justices have to come from there.


Posted by: Megan | Link to this comment | 05-10-10 11:00 AM
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156: Or, for that matter, why do we assume a justice's views today will be the same 30 years from now? I didn't like Jimmy Carter at all when I was 7!


Posted by: | Link to this comment | 05-10-10 11:04 AM
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Harvard didn't accept me—'nuff said.


Posted by: nosflow | Link to this comment | 05-10-10 11:11 AM
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Harvard did accept me -- 'nuff said.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 11:18 AM
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186: All our justices should totes come from Stanford. That's what's wrong with this country!


Posted by: parsimon | Link to this comment | 05-10-10 11:18 AM
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Here's the thing. I am pro-choice. Increasingly so. But that doesn't necessarily mean that if an abortion case came before me in my imaginary role as Justice Kotimy that I would automatically vote in a way that would be embraced as pro-choice. I am also pro-separation of powers and rule of law and stare decisis and many other things. How I might rule on any given case is utterly unknowable to me until I've read the briefs, the record, and heard the oral arguments.

This highlights future Justice Kotimy's commendable frankness and first-rate judicial temperament. The recent kabuki theater of the confirmation process is that nominees will utter deliver some version of the last two sentences while appearing to be struck dumb when asked about abortion, immigration, fill in the blank. Di's comment also makes me wonder about the confirmation process. Does anyone in the Senate actually look as hard at a nominee's views on "separation of powers and rule of law and stare decisis" as they seem to look at views on policy issues? Those jurisprudential/technical issues could be even more important to a nominee's future voting record than their personal views on policy issues.

I assume that the Senators are concerned that in truly history-making cases, justices will ultimately vote their policy/political preferences rather than decide the really big ones on such concepts as stare decisis or separation of powers (Bush v. Gore, anyone?). But sometimes lawyers' strongest policy preferences actually center on how to implement such legal concepts.


Posted by: bill | Link to this comment | 05-10-10 11:23 AM
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186-190 miss the point completely. Supreme Court Justices should be chosen from the pool of people with undergrad degrees from Chicago.


Posted by: essear | Link to this comment | 05-10-10 11:37 AM
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186-190 miss the point completely. Supreme Court Justices should be chosen from the pool of people with undergrad degrees from currently practice in Chicago.


Posted by: Di Kotimy | Link to this comment | 05-10-10 11:39 AM
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Supreme Court Justices should be chosen from the pool of people with undergrad degrees from Chicago.

Who didn't major in econ.


Posted by: nosflow | Link to this comment | 05-10-10 11:40 AM
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You said you wanted to get to the Court. Do you really wanna get there? You see what I'm saying is, what are you prepared to do?

Anything within the law.

And *then* what are you prepared to do? If you open the can on these worms you must be prepared to go all the way. Because they're not gonna give up the fight, until one of you is dead.

I want to get to the Court! I don't know how to do it.

You wanna know how to get to the Court? They pull a Kagan, you pull a sex scandal. He sends one of yours to back to the Seventh Circuit, you send one of his to the morgue. *That's* the *Chicago* way! And that's how you get to the Court. Now do you want to do that? Are you ready to do that? I'm offering you a deal. Do you want this deal?


Posted by: | Link to this comment | 05-10-10 11:45 AM
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I don't even own a television didn't even apply to Harvard.


Posted by: apostropher | Link to this comment | 05-10-10 11:45 AM
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196: Shocking. No SC nomination for you. I hope you're happy now.


Posted by: parsimon | Link to this comment | 05-10-10 11:48 AM
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I know. It shows how out of touch I am with normal Americans.


Posted by: apostropher | Link to this comment | 05-10-10 11:50 AM
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I bet you drive a stick-shift too.


Posted by: parsimon | Link to this comment | 05-10-10 11:56 AM
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I bet you drive a stick-shift too.
IYKWIMAITYD


Posted by: Kobe | Link to this comment | 05-10-10 11:59 AM
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I so don't get Harvard. Their admissions from my high school weren't the smartest kids at all. (Stanford took those kids, every one that I thought was scary-smart and none besides.) Harvard took the second tier kids, so I still don't get why it all our justices have to come from there.

That must be some high school. Nobody from my high school went directly to Harvard Law, let alone Stanford Law. We were the Western Pennsylvania Interscholastic Athletic League rifle champions a couple of years, though (Go Panthers!).


Posted by: bill | Link to this comment | 05-10-10 12:00 PM
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I would like to see more rewards given to alumni of the lesser Ivies -- who will speak up for the Penns and Cornells of the world? Pity the lowly graduate of Brown, sent to toil in the coding mines while Elis and even graduates of Old Nassau laugh and jape and destroy the economy from their six-million-dollar penthouses.

164: The problem is that Obama is 90% likely to get another go at this next year. Assume that Elena Kagan is everything we might hope -- the greatest liberal jurist since Frankfurter (or whoever), a brilliant politicker within the S.C. chambers. You still have to solve the equation "Kagan + Nominee X, confirmable by a much redder Senate" > "Diane Wood (or your pick here. Sullivan. Koh.) + Kagan". This isn't even counting the real costs of further entrenchment of stealth candidates (for one thing, I think Republicans are going to be vastly better at it than Democrats, thanks to screening via the Federalist Society).


Posted by: snarkout | Link to this comment | 05-10-10 12:07 PM
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It's almost as if there were some sort of elite whose members know each other, or at least have mutual friends to vouch for them, and who rely on those connections to figure out who to hire for important jobs.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 12:12 PM
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pity the lowly graduate of Brown, sent to toil in the coding mines

What is this? I wanted a SMALL LUMP OF ANTHRACITE COAL (U+F42A) and you've brought me a SMALL LUMP OF BITUMINOUS COAL (U+F42C)!


Posted by: nosflow | Link to this comment | 05-10-10 12:12 PM
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The problem is that Obama is 90% likely to get another go at this next year.

?????

If you mean Ginsburg, it's pretty unlikely that the replacement will be significantly to her right.


Posted by: Robert Halford | Link to this comment | 05-10-10 12:12 PM
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You're right. I didn't mean the law school admissions. I saw the undergrad admissions selections. Even so, the people I knew who later went to Harvard Law weren't the superstars at my high school. They were in the nice, solid achiever group, with lots of the rest of us. The standouts went other places.


Posted by: Megan | Link to this comment | 05-10-10 12:16 PM
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Except for Bave, of course. Total standout.


Posted by: nosflow | Link to this comment | 05-10-10 12:17 PM
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I've got a lump of bi-tumidous coal in my pants.


Posted by: nosflow | Link to this comment | 05-10-10 12:18 PM
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207: Harvard won't know what hit them.


Posted by: LizardBreath | Link to this comment | 05-10-10 12:18 PM
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205: I mean Ginsburg. Maybe I'm wrong! Solve the equation. Who is simultaneously more liberal than Diane Wood and more likely than Kagan to get through the Senate in 2011, which is probably going to have five or six additional Republicans? What evidence have we seen that Obama is willing to spark a major confirmation battle? Is there a Sotomayor out there who can split the GOP? Because I don't see Jim DeMint trembling in fear at the thought of filibustering Goodwin Liu's SC nomination.


Posted by: snarkout | Link to this comment | 05-10-10 12:20 PM
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202.last gets it exactly right. It's actually pretty puzzling why he (his team) made this choice at this time. I dunno, maybe Kagan said it's now or never. Given how obvious this calculus should have been, we're either lacking some information, or Obama (his team) really just screwed up.


Posted by: parsimon | Link to this comment | 05-10-10 12:20 PM
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209 to 208.


Posted by: apostropher | Link to this comment | 05-10-10 12:21 PM
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208: Harvard won't know what hit them.


Posted by: Cryptic ned | Link to this comment | 05-10-10 12:21 PM
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Wood isn't Earl Warren

I'm not really committed to a view of Kagan at the moment, but I'll mention that it's worth remembering that *Earl Warren* wasn't Earl Warren when he was nominated.


Posted by: Knecht Ruprecht | Link to this comment | 05-10-10 12:22 PM
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Here's the thing. I am pro-choice. Increasingly so. But that doesn't necessarily mean that if an abortion case came before me in my imaginary role as Justice Kotimy that I would automatically vote in a way that would be embraced as pro-choice. I am also pro-separation of powers and rule of law and stare decisis and many other things. How I might rule on any given case is utterly unknowable to me until I've read the briefs, the record, and heard the oral arguments.

This is the kind of radical fetishization that infuriate me. Let's change this to a death penalty case that failed to meet the new standards of review. Does the world end, civilization fall, the streets go bloody, your mirror crack if you ignore the letter and spirit of the law and find a way to save a life from the bench?

After WWII, tens of thousands of new vulnerable minorities were not put into concentration camps. We do not see thousands of Americans interred without habeas. There thin gs are bad, very bad, but did not open a floodgate of atrocities. If Roe was a crummy and unjustified decision, so fucking what. I haven't see privacy or other "new rights" popping up en masse.

Each decision has practical consequences for that case, and very few establish such precedent so as to mark some wide new social change. Pragmatism and realism can mean tossing principle and precedent and even argument and reason out the window, and understanding the social, political, and legal worlds are tough and resilient enough to survive.


Posted by: bob mcmanus | Link to this comment | 05-10-10 12:25 PM
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or Obama (his team) really just screwed up

Or Pres. Obama is a moderate who likes moderates, and would replace any retiring justice with a moderate.

I still think it is wonky to judge nominees relative to the outgoing justice. If Pres. Obama were replacing Justice Thomas with Kagan, we'd be thrilled. Kagan's the same, and the outgoing justice is out of our control.


Posted by: Megan | Link to this comment | 05-10-10 12:27 PM
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(1) I disagree with the premise that Diane Wood is likely, in any meaningful sense, to be more liberal than Kagan. (Admittedly, one of the few people in the world who knows whether this is true or not is Barak Obama) So I'm not sure that a Wood now, Kagan later strategy gets you all that much. I think these left-right rankings are pretty much bogus media creations (to be clear, I like Diane Wood a lot).

(2) I wouldn't take bets on Ginsburg retiring next year. I hope she does, but I wouldn't take bets on it.

(3) Someone like Harold Koh or Pam Karlan is not going to get nominated by Obama, let alone confirmed, ever, even if the Democrats had 80 seats. That's a matter of principle, not politics, for Obama. This is a subject that Obama has thought a lot about and on which made his views fairly well known.

(4) There are lots of excellent, liberal-centrist potential nominees who are about as good as Diane Wood or Elena Kagan, and who could get through a Congress with a smaller Republican minority. Judge Sid Thomas, for one!


Posted by: Robert Halford | Link to this comment | 05-10-10 12:30 PM
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The fetishization of law is very similar to the fetishization of the markets by the Randite trader or neo-classical economists. Efficient Markets and social darwinism self-justify the wealth and callousness of the latter, and fetishization of law serves the power and privilege of just another self-legitimating elite.


Posted by: bob mcmanus | Link to this comment | 05-10-10 12:31 PM
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Note that Obama's next nominee has to be male. Otherwise, there will be clear evidence of his anti-male bias.


Posted by: peep | Link to this comment | 05-10-10 12:32 PM
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Aggh, pretend that (4) made sense. "Larger" Republican minority.

And 214 is the key point. It's hard to predict how Justices will drift, especially 10-15 years down the road when there are new hot-button issues.


Posted by: Robert Halford | Link to this comment | 05-10-10 12:33 PM
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Megan on Kagan. Hot.


Posted by: nosflow | Link to this comment | 05-10-10 12:35 PM
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Does the world end, civilization fall, the streets go bloody, your mirror crack if you ignore the letter and spirit of the law and find a way to save a life from the bench?

Depends on the case and how exactly you go about saving this life.

Each decision has practical consequences for that case, and very few establish such precedent so as to mark some wide new social change.

At the level of the United States Supreme Court, this is pure willful ignorance. Seriously, I'm the most easily trolled commenter here by a long shot. But you are going to have to step up your game quite a bit.


Posted by: | Link to this comment | 05-10-10 12:39 PM
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222=me, in case the last graf didn't make that clear....


Posted by: Di Kotimy | Link to this comment | 05-10-10 12:40 PM
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217 (3): Thus proving that Obama is a worthless little shit.

Holder's announcement about the Miranda loophole was the last straw. At this point, I fucking hate the guy.


Posted by: Walt Someguy | Link to this comment | 05-10-10 12:42 PM
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224.last: A-fucking-men. it's not as if Miranda is even much of an impediment anymore.


Posted by: Di Kotimy | Link to this comment | 05-10-10 12:45 PM
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Pragmatism and realism can mean tossing principle and precedent and even argument and reason out the window, and understanding the social, political, and legal worlds are tough and resilient enough to survive

Bob, you and Justice Douglas would have really gotten along well. To add to your reading list!


Posted by: Robert Halford | Link to this comment | 05-10-10 12:45 PM
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I don't see 214 as the key point, unless we're prepared to endorse any nominee chosen by a Democrat without question, because, hey, who knows how they might turn out? We might as well not fight the most extreme Republican nominees in hope of getting more acceptable candidates, either, as they may in fact be incipient moderates. Clearly, substantive information about a prospective justice's views has no predictive power whatsoever because Earl Warren blah, blah, blah.

Also, do you believe that Wood-Kagan and Kagan-Garland would be essentially six of one, etc.?


Posted by: Mr. Blandings | Link to this comment | 05-10-10 12:49 PM
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Kagan was nominated because she is a lesbian and the only chance of getting her through the nomination process is while there are lots of Democrats in Congress. After the elections the votes won't be there. Before the elections the horrific nastiness and petty judgmentalism of the religious right will help turn out some Democrats who might otherwise have stayed home, possibly saving a seat or more. The bigot right will be turning out in droves anyway, so energizing them is of no importance. Also nominating a lesbian helps take some of the sting out of Obama's failure (so far!) to overturn DADT, and provides a context for bringing it to the forefront of public consciousness without directly attacking it, at which point repeal will be easy because it's so obviously bloody awful. Kagan's nomination ensures that the conversation will be in terms of equality rather than barracks buttsecks.

Alternatively, some other reason.


Posted by: togolosh | Link to this comment | 05-10-10 12:50 PM
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At the level of the United States Supreme Court, this is pure willful ignorance.

Talk cases.

Did Lawrence suddenly stop the thousands of annual arrests of gays, or did it mostly mark an already established social change?

Did Brown integrate the schools, or was it Eisenhower and the Nat Guard?

How many, real numbers, of runaway slaves were returned to owners because of Dred Scott?

Some people live, and want to live in abstraction, where ideas rule rather than people.


Posted by: bob mcmanus | Link to this comment | 05-10-10 12:53 PM
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Also, do you believe that Wood-Kagan and Kagan-Garland would be essentially six of one, etc.?

Yes.

Or, really, that they will be different, but that the differences will mostly be in areas that we can't really predict right now.

That's the point about drift -- obviously, committed conservative Republicans suck. But within the broad range of centrist/legal elite/Democratic Party types, the people we're talking about when we're talking about an Obama SCOTUS nominee, the amout of unpredictable drift will completely swamp whatever minor differences one can intuit by reading tea leaves in judicial opinions or whatever.

[And I also think that there is such a thing as judicial skill, more or less distinct from a judge's politics. There are plenty of reasons for thinking that different centrist democrats would make better or worse judges. But we're talking about politics here]


Posted by: Robert Halford | Link to this comment | 05-10-10 12:54 PM
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As far as Kagan goes, Greenwald has pretty much shut up. It is over, she will be confirmed, and on the bench long after I die.

Any further criticism or defense is now a mere matter of marking tribal boundaries.


Posted by: bob mcmanus | Link to this comment | 05-10-10 12:56 PM
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228: HOW DARE YOU DEFAME HER LIKE THAT!


Posted by: OPINIONATED OBAMA ADMINISTRATION | Link to this comment | 05-10-10 12:56 PM
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most easily trolled commenter

Wait, if you start taking U of C connected people, wouldn't you eventually get New Trier all over the inside of the court building?


Posted by: lw | Link to this comment | 05-10-10 1:00 PM
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228 is interesting. I'd kind of assumed that it didn't matter one way or the other whether Kagan is a lesbian, but I guess it would take some sly work to put a lesbian on the court, and if she is a lesbian willing to be in the closet for the rest of her life (?), well, this would be the way to do it. Uh.


Posted by: parsimon | Link to this comment | 05-10-10 1:01 PM
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Suppose, just for the sake of argument, we didn't know anything about the prospective judge's judicial skill OR politics?


Posted by: Mr. Blandings | Link to this comment | 05-10-10 1:01 PM
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Even so, the people I knew who later went to Harvard Law weren't the superstars at my high school.

Comity - none of them even tried out for our rifle team. A little queasy on the Second Amendment.


Posted by: | Link to this comment | 05-10-10 1:01 PM
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236 was me.


Posted by: bill | Link to this comment | 05-10-10 1:02 PM
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235 -- If that were the case, the person shouldn't be nominated. But that's not the case with Kagan, at all.


Posted by: Robert Halford | Link to this comment | 05-10-10 1:04 PM
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she is a lesbian willing to be in the closet for the rest of her life (?)

Or, until the day after she's confirmed. I'd sort of figure, if she is gay, that she'd gently drift out of the closet pretty fast once she was on the Court.


Posted by: LizardBreath | Link to this comment | 05-10-10 1:04 PM
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the day after she's confirmed

"Guess what America. You just confirmed a big gay Justice! For life! Hahahahahahhaha."


Posted by: Robert Halford | Link to this comment | 05-10-10 1:05 PM
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*Earl Warren* wasn't Earl Warren when he was nominated.

And Brennan sure as hell wasn't Brennan (or at a minimum Eisenhower and his advisers didn't think he was).


Posted by: JP Stormcrow | Link to this comment | 05-10-10 1:06 PM
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238: Well, I understand that there are only a few people in the world who know if Kagan is likely to be more liberal than Wood, and we're not among them. So what do we know about her judicial skill, then?


Posted by: Mr. Blandings | Link to this comment | 05-10-10 1:10 PM
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I've pretty much internalized the conventional wisdom that this nomination represents the high water mark of liberalism for Obama's high court picks, and that the most likely explanation for having nominated a moderate is that Obama prefers moderates. And yet...

If you were Obama, and you (let's stipulate) wanted in your heart of hearts to nominate a full-throated liberal to the court, would you really do it now, or later? Put another way, if you were contemplating engaging in a combat à mort with the Senate Republican caucus over a SCOTUS nominee, would you do it when it risks a humiliating defeat right before the midterms? Or would you do it when a loss would be seen as going down fighting, and a win (not impossible) would be seen as a dramatic come-from-behind victory?

I'm not really convinced by my own logic here, but if the odds on offer were good enough, I would take a flyer on the next appointee being at least as liberal as Kagan.


Posted by: Knecht Ruprecht | Link to this comment | 05-10-10 1:11 PM
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Suppose, just for the sake of argument, we didn't know anything about the prospective judge's judicial skill OR politics?

119 provides the analytic baseline:

"Do people who know her think she's fascist?"
and
"Is she rude to waiters?"


Posted by: bill | Link to this comment | 05-10-10 1:11 PM
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Bob: Does the world end, civilization fall, the streets go bloody, your mirror crack if you ignore the letter and spirit of the law and find a way to save a life from the bench?

Di: Depends on the case and how exactly you go about saving this life.

Let's say that there's a very fat man seated at the end of the bench. And a set of trolley tracks that run precisely under the bench...


Posted by: Tom Scudder | Link to this comment | 05-10-10 1:13 PM
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Did Brown integrate the schools, or was it Eisenhower and the Nat Guard?

Could Eishenower and the Nat Guard have done shit without the authority of Brown?

Could doctors openly provide abortions without Roe v. Wade?

Miranda didn't eliminate abusive police practices, but it improved things a helluva fucking lot.

Apprendi has been ginormous for affecting criminal sentencing.

Crawford v. Washington has made a very meaningful difference in enforcing the confrontation clause in criminal trials.

Brady v. Maryland has had a real impact on protecting the rights of criminal defendants.

I could probably come up with a bunch more if I gave it some thought. By all means, back up your claim that Supreme Court precedent has little effect beyond the particular case before the court. But you'll need to come up with something better than rhetorical questions presuming facts not in evidence.


Posted by: Di Kotimy | Link to this comment | 05-10-10 1:13 PM
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See, told ya I'm easily trolled.

New Trier all over the inside of the court building

Now *this* would scare me.


Posted by: Di Kotimy | Link to this comment | 05-10-10 1:17 PM
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"Guess what America. You just confirmed a big gay Justice! For life! Hahahahahahhaha."

That would be really, really bad for Obama, however. It's a bit of a dilemma, then, hence my supposition that Kagan, if gay, would have to remain in the closet. The whole scenario sucks.


Posted by: parsimon | Link to this comment | 05-10-10 1:21 PM
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If you were Obama, and you (let's stipulate) wanted in your heart of hearts to nominate a full-throated liberal to the court, would you really do it now, or later? Put another way, if you were contemplating engaging in a combat à mort with the Senate Republican caucus over a SCOTUS nominee, would you do it when it risks a humiliating defeat right before the midterms?

Um, what? Um, what, what, um, what? You still think the identity of the SCOTUS nominee would have anything to do with the intensity of Republican opposition? Have you seen the Republican opposition strategy lately?


Posted by: Cryptic ned | Link to this comment | 05-10-10 1:23 PM
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239: My hypothetical assumes she cracks the closet door during the confirmation process. If she squeaks onto the bench under the genteel hypocrisy that keeps half a dozen gay congressmen from being outed by their peers it serves no useful purpose. If, OTOH, the bulging-eyed spettle-flicked ranters go all out on a nice aunty type lady just because she prefers shag to hardwood, the crazy evil assholes look like they are crazy and evil and assholes.


Posted by: togolosh | Link to this comment | 05-10-10 1:24 PM
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What exactly do people fear? What is fear? I can understand being pro-choice, but not fear. I think Greenwald is misguided in his criticisms of her advocacy as solicitor general, but I understand where he's coming from. Yet, in this thread, there is only fear of the unknown. Not from Kagan. There seem to be two competing ideas: (1) Kagan is very likely more moderate than Wood, a proposition for which I've seen exactly no support, other than the fact that Wood has an established record as a reliable liberal voice, and Kagan is less well known, and (2) Kagan is an x-factor who we know nothing about, and that's too big a risk. Maybe she'll be the next Warren, but maybe she'll vote to overturn Roe v. Wade. We can't know! These two ideas are fundamentally at odds with one another. Several people upthread mentioned this abortion.


Posted by: Brock Landers | Link to this comment | 05-10-10 1:25 PM
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247: CA and ogged might make for amusing SC justices.


Posted by: oudemia | Link to this comment | 05-10-10 1:26 PM
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Di: Depends on the case and how exactly you go about saving this life.

Good nugget for your confirmation hearing!


Posted by: bill | Link to this comment | 05-10-10 1:26 PM
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251 came out mangled due to some unfortunate cutting and pasting with insufficient clean-up, but I think the main point is still intelligible enough.


Posted by: Brock Landers | Link to this comment | 05-10-10 1:27 PM
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254: You might want to make explicit the referent for "this abortion". There seem to be several possibilities.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 1:30 PM
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I think the comment itself is the abortion.


Posted by: jms | Link to this comment | 05-10-10 1:30 PM
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Abortions don't kill comments. Commenters kill comments.


Posted by: apostropher | Link to this comment | 05-10-10 1:32 PM
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254: Do you mean you can understand being pro-choice, but you can't understand fear? Or that you can understand being pro-choice, but you can't understand being pro-fear?


Posted by: Cryptic ned | Link to this comment | 05-10-10 1:33 PM
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(1) Kagan is very likely more moderate than Wood, a proposition for which I've seen exactly no support, other than the fact that Wood has an established record as a reliable liberal voice, and Kagan is less well known, and (2) Kagan is an x-factor who we know nothing about, and that's too big a risk. Maybe she'll be the next Warren, but maybe she'll vote to overturn Roe v. Wade. We can't know! These two ideas are fundamentally at odds with one another.

They seem consistent to me. Both can be rephrased as "Kagan has an 80% chance of being more moderate right-wing than Wood."

Meanwhile, in the realm of the issues that never get brought up during the confirmation process, John Podesta uses the medium of the incredibly phony-sounding and robotically boring boilerplate press release to suggest the intriguing idea that Kagan could be an exception to what is often a unanimous pro-corporate majority on the Court.


Posted by: Cryptic ned | Link to this comment | 05-10-10 1:36 PM
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You might want to make explicit the referent for "this abortion". There seem to be several possibilities

That last sentence was the leftover fragments of two other sentences that got rewritten at other points of the comment. You can ignore it entirely. The second, third, fifth and sixth sentences as well.


Posted by: Brock Landers | Link to this comment | 05-10-10 1:37 PM
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Both can be rephrased as "Kagan has an 80% chance of being more moderate right-wing than Wood."

But where would you come up with something like that?


Posted by: Brock Landers | Link to this comment | 05-10-10 1:38 PM
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could be an exception to what is often a unanimous pro-corporate majority

That would be a positive development.


Posted by: apostropher | Link to this comment | 05-10-10 1:39 PM
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Brock, you could always rewrite the comment rather than telling us after the fact which sentences to ignore.


Posted by: parsimon | Link to this comment | 05-10-10 1:41 PM
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262: yeah, certainly better than the opposite, but without five it's not much good.


Posted by: Brock Landers | Link to this comment | 05-10-10 1:41 PM
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263: the fear that she's might vote to overturn Roe v. Wade strikes me as incredibly unrealistic, although it's a natural consequence, I suppose, of thinking we just don't have any idea what she believes. The fear that she's more moderate than Wood is entirely different, and seems premised on the idea that we do have some basis for insight into her opinions, although I'm not really sure what that basis is. I understand where Greenwald is coming from with the S.G. stuff, although I really don't not disagree with him. Is there another reason to think she's more moderate than Wood? Or is that view presmised only on: (1) we know where Wood stands, and (2) we don't know where Kagan stands, and, I don't know, maybe (3): Wood is more liberal than 80% of Democratic legal scholars (which I take roughly to be the basis for 259.1)?


Posted by: Brock Landers | Link to this comment | 05-10-10 1:48 PM
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although I really don't not disagree with him

So, you do disagree with him. Right?


Posted by: peep | Link to this comment | 05-10-10 1:55 PM
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251: It's that this is the exact way Obama would nominate a corporate-whore moderate with the minimum of flack from the left. Since the Dems have a big majority that they're like to lose, the left will have high expectations. A candidate with no record is the easiest way for Obama to sneak by.


Posted by: Walt Someguy | Link to this comment | 05-10-10 1:58 PM
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266: yes, basically. Sorry, typo.


Posted by: Brock Landers | Link to this comment | 05-10-10 2:01 PM
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This is sort of interesting:

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don't Ask, Don't Tell policy--you called it "a profound wrong--a moral injustice of the first order"--let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.


Posted by: oudemia | Link to this comment | 05-10-10 2:05 PM
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It's not so much that I think she'd vote to overturn Roe v. Wade; her associations are enough of a proxy for people to have reasonable confidence she's a moderate politically. But for purposes of the legitimacy and effectiveness of the confirmation process, that's nowhere near enough - a political moderate could go in a hundred different directions on the Court while staying moderate.


Posted by: Minivet | Link to this comment | 05-10-10 2:14 PM
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Suppose, just for the sake of argument, we didn't know anything about the prospective judge's judicial skill OR politics?

We'd speculate wildly on the internet?


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 2:19 PM
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Also, who wants another Warren or another Douglas? I'd rather have someone who's thought a lot about where their jurisprudence succeeded and where it failed, what we can learn from 30 years of reaction, etc.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 2:29 PM
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My lunch friend and I were saying how much we'd love to see Ms. Kagan's long term partner (if she has one) hold the book for Ms. Kagan's swearing in.


Posted by: Megan | Link to this comment | 05-10-10 2:29 PM
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Peretz endorses Kagan. That settles it, I'm with the opponents.


Posted by: KR | Link to this comment | 05-10-10 2:34 PM
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272: On a court with Roberts, Alito, Scalia, and Thomas. Really, I'd like at least one.


Posted by: Walt Someguy | Link to this comment | 05-10-10 2:39 PM
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Interesting that almost all the lawyers are neutral-supportive on Kagan, whereas the non-lawyers seem more riled up about her. Not that the lawyers are necessarily right, but it shows something.


Posted by: Robert Halford | Link to this comment | 05-10-10 2:41 PM
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274: Wow. That's one hell of a snotty opening paragraph. I didn't realize Peretz was so far gone.


Posted by: parsimon | Link to this comment | 05-10-10 2:41 PM
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273: People say she does and this isn't exactly unknown. I generally don't have a lot of sympathy for the glass closet crowd and I am wondering why I am giving her a pass for this in my head.


Posted by: oudemia | Link to this comment | 05-10-10 2:43 PM
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Everyone admires her character, and she's funny! What a sack of horseshit is Marty Peretz!


Posted by: nosflow | Link to this comment | 05-10-10 2:43 PM
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276: Well, Greenwald. I mean, he isn't commenting here, but he is a lawyer.


Posted by: oudemia | Link to this comment | 05-10-10 2:44 PM
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276: For me, it's because I know just enough to know that I have next thing to no idea how any nominee is likely to act on the Court. "Liberal lionesses" are great, in theory, but other than on Roe v. Wade, I don't have a useful roadmap from someone's politics to what they're likely to do with the cases before them.


Posted by: LizardBreath | Link to this comment | 05-10-10 2:45 PM
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Campos is also a lawyer, and he's been pretty critical.


Posted by: Walt Someguy | Link to this comment | 05-10-10 2:46 PM
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You may have noticed, though, that Campos is a nobody whose interests include obesity.


Posted by: nosflow | Link to this comment | 05-10-10 2:46 PM
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279: He's apparently lost his marbles, and is unable to converse with the grownups.


Posted by: parsimon | Link to this comment | 05-10-10 2:47 PM
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278: Yeah, this is an issue, and not one I'm coherent on. I hate to be too hard on closeted gay people, because there can be difficult personal/family/career dynamics and I can't judge individual circumstances. OTOH, that the administration has (I think?) denied straightforward inquiries as if asking about her orientation were a slur rubs me the wrong way as well.


Posted by: LizardBreath | Link to this comment | 05-10-10 2:48 PM
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275: What I'm getting at goes back to Halford's point upthread somewhere that being an appellate judge is a real job with real skills that you can be good at or bad at regardless of result. In 2010, seeing how various bits of Warren Court jurisprudence worked out over time, I'd expect a Supreme Court appointee to be a lot more sophisticated than just trying to pick up where Warren left off. That also appears to be the view of the guy who's doing the appointing.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 2:51 PM
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I hate to be too hard on closeted gay people

Reality check: being a closeted gay person is completely understandable, though regrettable.


Posted by: parsimon | Link to this comment | 05-10-10 2:54 PM
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278: If she can't tell the world a single opinion she's held in 40 years, she can't be expected to tell you who she kisses as she rushes out the door to the office in the morning. If she were out of the closet, she would have as much chance of being nominated as Team Karlan!


Posted by: rob helpy-chalk | Link to this comment | 05-10-10 2:55 PM
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282: Campos, in addition to being a law professor, is also a self-promoting idiot. The Harriet Miers meme, which I believe he began, is representative of his style.


Posted by: ari | Link to this comment | 05-10-10 2:59 PM
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289: That's puzzling. I had assumed since Peretz attacked him he had to be a wonderful human being. Are you saying that Marty Peretz was right about something?


Posted by: peep | Link to this comment | 05-10-10 3:02 PM
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Even a stopped clock?


Posted by: ari | Link to this comment | 05-10-10 3:04 PM
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291: Yes, but I see Peretz more as a clock moving backwards in random spasms.


Posted by: peep | Link to this comment | 05-10-10 3:08 PM
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Wow, I hadn't read the Peretz piece when I wrote my comment. The man is the very definition of a shanda fur die goyim.


Posted by: ari | Link to this comment | 05-10-10 3:09 PM
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I don't understand why her sexual orientation matters.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:11 PM
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An argument between someone who thinks Kagan is Harriet Miers and someone who is Marty Peretz adds no information and should be disregarded completely.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 3:12 PM
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294: For the children, of course.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 3:12 PM
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293.last: HEY WHAT AM I, CHOPPED LIVER?


Posted by: OPINIONATED JOE LIEBERMAN | Link to this comment | 05-10-10 3:13 PM
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294: It matters a hell of a lot to the haters.


Posted by: togolosh | Link to this comment | 05-10-10 3:14 PM
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I think Greenwald is misguided in his criticisms of her advocacy as solicitor general, but I understand where he's coming from.

One of the reasons that I'm so unconflicted about being anti-Kagan is that, regardless of her merits as a nominee, I see virtually no downside to criticism of her from the left.

If Greenwald and his allies were to win on this one, well, anything that allows for people like Greenwald to be taken more seriously is good. If Kagan is nominated over the objections of folks like Greenwald, then those objections will have at least been made, and the charge that Kagan is a lefty extremist will at least have been rebutted.



Posted by: politicalfootball | Link to this comment | 05-10-10 3:15 PM
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299: That does seem right -- complaints about her centrism are going to be at least harmless.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:16 PM
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Not being conversant in Yiddish, I googled "shanda fur die goyim" and the first hit is this post, which includes the following passage:

So while I wasn't particularly surprised this morning, it was with a heavy heart that I read a news report of the Israeli Ambassador to El Salvador having been found bound, naked and drunk on a public street with a rubber ball stuffed in his mouth and various, er, adult toys nearby. As I skimmed the article I hoped against hope that he had been the victim of some sort of assault or hate crime.


Posted by: apostropher | Link to this comment | 05-10-10 3:16 PM
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301: It's like you have some superpower.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:17 PM
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301: From the comments thread of that post:

I guess he didn't realize that Purim was over.

Posted by: LizardBreath | Link to this comment | 05-10-10 3:18 PM
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But most Republicans will oppose her regardless, so it's not like she'd be losing meanginful votes. And I can't imagine any Republicans standing up on the Senate floor and arguing that her sexual orientation made her unfit to serve on the Supreme Court. So I don't understand what difference it makes.

(Full disclosure: I think I've said this here before, but prior to the "rumors" that cropped up in connection with her nominations, it never occured to me that she might not be a lesbian. I'd always heard that she was, and in context I didn't understand that to be a malicious whisper. I didn't think she was formally "closeted", but in practice just not one to discuss her private life very openly in public. But it's entirely possible all that's wrong, of course. I haven't seen any sex tapes.)


Posted by: Brock Landers | Link to this comment | 05-10-10 3:21 PM
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295: Kagan is no Harriet Miers, but count me among those who was fine with Miers' nomination (in the context of it being Bush nominating her and that he was likely to have otherwise picked some closet bigot like Alito).


Posted by: JP Stormcrow | Link to this comment | 05-10-10 3:22 PM
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I don't understand why her sexual orientation matters.

And I don't even see race.


Posted by: politicalfootball | Link to this comment | 05-10-10 3:22 PM
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304 to 298.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:23 PM
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If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America.

Posted by: Bave Dee | Link to this comment | 05-10-10 3:24 PM
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305: Agreed that the Kagan-Miers analogy falls flat on some levels, but I have misgivings about Kagan for roughly the same reason I hoped Miers would get through. As I said in 75, Republican stealth candidates are much superior to the non-stealth ones for those of us who don't sympathize with conservatives.


Posted by: politicalfootball | Link to this comment | 05-10-10 3:28 PM
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304: I speculate (without any basis) that her being gay is a sop to the militant box turtle lobby to make up for foot dragging on DADT and an attempt to get the religious right worked up into an ugly frenzy that will bring mushy liberals to the polls later this year. Certainly the hardcore right will be turning out in force, so nothing is lost by getting them riled up. The liberals and Democratic centrists need motivation to turn out, and some full fledged hating might do the trick.

This is all rank uninformed speculation based on nothing more than a desire to avoid work, so...


Posted by: togolosh | Link to this comment | 05-10-10 3:28 PM
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I can't imagine any Republicans standing up on the Senate floor and arguing that her sexual orientation made her unfit to serve

I wouldn't be surprised, though.


Posted by: apostropher | Link to this comment | 05-10-10 3:29 PM
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308 is awful, but it doesn't surprise me that you can find right-wing cranks saying that. (And they say awful things no matter what, so.) I was talking about Senate votes.

Also, from your link: We appeal to Kagan and all potential "hiding-in-the-closet" public officials to answer the question: 'Are (or were) you a practicing homosexual or do you consider yourself homosexual (gay)?'

I'd love to see rob or togolosh be faced with this question, and hear them answer: "No, I'm not, I thought about it and realized I couldn't get over the smell."


Posted by: Brock Landers | Link to this comment | 05-10-10 3:30 PM
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Various blogs say she is out, but doesn't comment publicly on her sexuality. Which is cool, but why did the WH react like she was accused of eating babies when someone said she was a lesbian? OK, fine, I know why I guess, but it's untoward. Just say, "None of of your business!" not "OMG ew! No!"


Posted by: oudemia | Link to this comment | 05-10-10 3:30 PM
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314: Rather, "Various gay blogs," not, like, just RedState or something.


Posted by: oudemia | Link to this comment | 05-10-10 3:31 PM
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313: agreed, the WH reaction was despicable.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:31 PM
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315: And just weird. Lying is one thing, if you think you're not going to get busted, but lying on an issue where the truth is known seems bizarre.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:33 PM
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Various blogs say she is out, but doesn't comment publicly on her sexuality.

I don't see how this is really "out."


Posted by: Bave Dee | Link to this comment | 05-10-10 3:35 PM
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She's out to her in-crowd.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 3:36 PM
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316: well, exactly, which is what made me think "oh, maybe I was wrong, and that was all just unfounded rumor". Because otherwise the reaction makes very little sense. Would the WH act surprised if she later publicly came out as a lesbian?


Posted by: Brock Landers | Link to this comment | 05-10-10 3:39 PM
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317: Is there a better word for it? It's a familiar position to me: "Out to anyone I know socially, but I don't bring up my partner in work/non-social public contexts." Seems as though there should be a shorthand for it, which means there probably is but I don't know it.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:39 PM
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militant box turtle lobby

A phrase I had not heard before.


Posted by: rob helpy-chalk | Link to this comment | 05-10-10 3:40 PM
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Also, who wants another Warren or another Douglas?

Is this a trick question? I'd take the zombies.


Posted by: bob mcmanus | Link to this comment | 05-10-10 3:41 PM
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I'm farily sure there are plenty of people I know personally and professionally who don't know my sexual orientation, except insofar as the default assumption matches in my case. That doesn't seem odd to me at all.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:42 PM
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317: Well, that's why I said "glass closet" before, but that phrase was the one I saw used on Queerty earlier. I don't think she pretends not to be a lesbian, and, as I understand it, her colleagues know her partner, etc., but she doesn't say "I am a lesbian" at meeting or whatever. The whole thing is so fraught -- I don't feel it's fair for me to judge her about this, but like I said before, it's not usually the kind of thing I have a lot of sympathy for.


Posted by: oudemia | Link to this comment | 05-10-10 3:42 PM
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324: But they wouldn't have to ask around too hard before they found out you were married with kids -- your marital status is (I would surmise) known to people in your office who aren't close with you.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:43 PM
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If you're the White House, you've got exactly two choices: You say she's not gay, or that she is.

"None of your business" would have simultaneously (and paradoxically) been regarded as evasive and as confirmation that she's gay.

As it is, I don't think anybody's name has been attached to the claim that she's straight, so it's easy to change course if that later becomes necessary.


Posted by: politicalfootball | Link to this comment | 05-10-10 3:44 PM
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312:
Senator: "Are you a practicing homosexual?"
Robolosh: "I would totally practice and practice until I was really, really good at it, but I can't get past the smell."


Posted by: togolosh | Link to this comment | 05-10-10 3:44 PM
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325: assuming that's to 323, see 324. I'm having a hard time understanding how her and I are different in this.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:46 PM
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325: I deny that filthy rumor!!! (Yes, yes, I know, Brock's comment.)


Posted by: oudemia | Link to this comment | 05-10-10 3:47 PM
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320: I guess there should be a shorthand for it. Basically, though, it's a form of being closeted. "The closet" isn't usually a light-tight chamber whence no rainbows escape. And being in a position where you're out to close friends but closeted at work and in the community means you are still relying on the social conventions and prejudices of the closet and to some extent contributing to their continued power.

And of course, a queer person may have really good reasons for doing this, and it may be ethically appropriate depending on the person's situation. But let's be clear that it's still living in the closet.


Posted by: Bave Dee | Link to this comment | 05-10-10 3:48 PM
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327: http://www.google.com/search?q="new+gay+smell"


Posted by: apostropher | Link to this comment | 05-10-10 3:49 PM
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Not being conversant in Yiddish

Antisemite.


Posted by: ari | Link to this comment | 05-10-10 3:50 PM
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328: I think mostly because the current social rules are that it's rude and offensive to note that someone's gay unless they've in some explicit way given you permission to say so -- announced themselves as really out. So she can introduce people to her partner, but it would be wrong of them to mention to a third person who she didn't know that she was gay.

This is a nutty, and I think harmful, set of expectations, but I think it explains how a gay person can still be not completely out under circumstances where a straight person would be unambiguously 'out' as straight.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:50 PM
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It's related to that bizarre flap during the 2004 election about Mary Cheney, and whether it was okay to refer to her as gay in public while she was actually working as an outreach coordinator on gay issues for her father.


Posted by: LizardBreath | Link to this comment | 05-10-10 3:52 PM
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Huh. That doesn't work. Anyhow, nine hits for "new gay smell" was surprisingly low.


Posted by: apostropher | Link to this comment | 05-10-10 3:53 PM
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I'm not really convinced by my own logic here, but if the odds on offer were good enough, I would take a flyer on the next appointee being at least as liberal as Kagan.

The rumor in the Village is that Obama is saving Garland for when he has a more conservative Congress.

2) The fear is not a reversal of Roe v Wade, but a continuation of the chipping away at its implementation and breadth. Late term, crossing state lines, etc etc. From the above, I apparently can't even have confidence that DK would find for instance, the exceptions in HCR to be unconstitutional.

3) Kagan could be an exception to what is often a unanimous pro-corporate majority on the Court.

Not. Not from Obama.

I think the center left may have fully surrendered to corporate dominance in exchange for the SWPl goodies. All us debt peons will be equal.

A forty year huge social story, lifestyle left sacrificing the working class.


Posted by: bob mcmanus | Link to this comment | 05-10-10 3:53 PM
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I don't disagree with 333, if it seemed like I was. It just seems like this is placing a bizarre onus on gay people to affirmatively out themselves, rather than just failing to closet themselves. "This is my partner" isn't good enough for a gay person; instead it has to be "this is my partner; together we have homo sex".

It's not my issue, so I don't feel strongly about it either way, but it does seem odd to me.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:56 PM
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And I find that I keep circling back to "why does any of this matter? Who gives a shit?" Which no one has answered.


Posted by: Brock Landers | Link to this comment | 05-10-10 3:58 PM
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Taft says he wants Megan at Interior. But look what he did to Pinchot.


Posted by: md 20/400 | Link to this comment | 05-10-10 3:58 PM
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Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.
Bali Mangthi Kali Ma.

Working class.


Posted by: OPINIONATED LIFESTYLE LEFT | Link to this comment | 05-10-10 3:59 PM
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oudemia is a sinner.


Posted by: will | Link to this comment | 05-10-10 4:00 PM
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330: in the supply closet? In the copy room?


Posted by: Sifu Tweety | Link to this comment | 05-10-10 4:00 PM
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338: You can't be serious about "Who gives a shit". The socially conservative right gives a huge shit. The right thing to do is probably to bulldoze them, but you can't be confused about what the obstacle is to confirming an openly gay Justice.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:01 PM
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Oh, golly, it really all has been part of a grand plan. From the NYTimes:
cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.


Posted by: oudemia | Link to this comment | 05-10-10 4:01 PM
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I apologize on behalf of my high school for us all being a bunch of pretentious little snots.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:02 PM
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How could it not be a big deal? You don't think it matters that we could have our first (semi-demi) openly gay Supreme Court justice?


Posted by: Robert Halford | Link to this comment | 05-10-10 4:05 PM
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I don't get 343 at all. How many senators do you think will be voting to confirm her, who wouldn't if she came out as openly gay? The socially conservative right already hates her, not least because of the military non-gay-recruiting-ban thing.


Posted by: Brock Landers | Link to this comment | 05-10-10 4:06 PM
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347: There's "hates her" and there's "will organize massive Tea Party demonstrations about how her nomination shows that Obama hates God, and so every single thing he does must be stopped, and Congress needs to be swept clean of Democrats so that this abomination can never happen again."

The right thing to do is to bull through it, but there'd be a shitstorm if she were openly gay that's not going to happen if she isn't.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:09 PM
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Interesting that almost all the lawyers are neutral-supportive on Kagan, whereas the non-lawyers seem more riled up about her. Not that the lawyers are necessarily right, but it shows something.

What it shows about me is that I'm in militant watch-the-feet mode. I have given up on the Obama administration's rhetoric as anything other than a helpful signal of what they want to be heard to be saying. If I care about policy issues, I have to shut my ears and watch what they DO.

I don't trust someone who has apparently never expressed opinions on difficult topics, not because I think she's secretly more conservative or liberal, but because I think the very value of not voicing your stance is itself a problematic value. It prioritizes something -- ambition, privacy, who knows -- over the task of having to take and defend a position, or take a position and later decide you are wrong. And that doesn't sit well with me.

Maybe she'll be a great justice. Maybe not. But as of right now I have zero reasons to trust that she will prioritize the process values -- let alone the content values -- that I hold.


Posted by: Witt | Link to this comment | 05-10-10 4:10 PM
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I don't trust someone who has apparently never expressed opinions on difficult topics,

I reiterate that this seems to me to be an unfounded description of her.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:11 PM
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A forty year huge social story, lifestyle left sacrificing the working class.

BUT ATTACK ONE ANTI-WAR DEMONSTRATION ...


Posted by: OPINIONATED HARDHAT | Link to this comment | 05-10-10 4:12 PM
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346:And if it were a wingnut Heritage troglodyte, it would still be a cause for celebration?

It is a distraction from what really matters.

I'll be honest, I am copping a fucking serious attitude toward all the incestuous Harvard-Yale East coastal corporate elite, black brown gay straight. I am sick of it.


Posted by: bob mcmanus | Link to this comment | 05-10-10 4:14 PM
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when there are new hot-button issues.

I'm honestly agnostic on this question, mostly out of ignorance. Can it really be said that the Supreme Court faces NEW hot-button issues on a regular basis?

I mean, I understand that in 1850 there weren't questions about donor egg custody or stem-cell research, but the vast majority of "important" SC cases from the last decade that I can think of concern such good old-fashioned topics as:
- War powers
- Non-war powers of detention
- Habeus corpus
- Corporate personhood
- Copyright and patents
- Individual rights (as codified in the Bill of Rights)
- Treaties and international relations

Has there been a swarm of genuinely new social issues coming before the court that I am not aware of? It's not like I look at the docket regularly, so I could certainly be unaware of it. AFAICR, they get something like 7,000 petitions to hear a case every year, and they pick about 1%, so that's 70 or so cases every term....most of them aren't making headline news in any case.


Posted by: Witt | Link to this comment | 05-10-10 4:17 PM
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348:It's an even bigger distraction for the Tea Party crowd by their masters. We already know the Republican Village Corporatists don't give a fuck about orientation as long as profits aren't attacked.


Posted by: bob mcmanus | Link to this comment | 05-10-10 4:17 PM
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Eh, 348 just doesn't strike me as realistic, but if it does you, then I guess I understand why you'd care about the issue.


Posted by: Brock Landers | Link to this comment | 05-10-10 4:17 PM
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355: 348 could certainly be overstated, the reaction might not be that bad. But something along those lines is a possibility.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:20 PM
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the incestuous Harvard-Yale East coastal corporate elite

Let's start a campaign, bob. Mandatory SC road trips! Let them rotate among the federal circuits, hearing arguments in different locations each week of the term.

Let them travel to California and witness the wilds of the 9th Circuit in person. Let them endure the tolls of New Jersey and not the frills of the Virgin Islands when they stop by the 3rd Circuit.*

*I'm probably getting the geography wrong; I don't care.


Posted by: Witt | Link to this comment | 05-10-10 4:22 PM
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I think what you're saying is what I said in #91 and #95, bob. Also, fuck off and die, you horrifyingly cowardly traitor, etc. etc., your usual salutations.


Posted by: Cryptic ned | Link to this comment | 05-10-10 4:24 PM
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Brock, I'm not sure that 348 is how it would all shake out, but can you see that the sheer amount of bandwidth and attention being devoted to mere speculation is an indicator of how insane people would (take it as an excuse to) go if she were going forward as an openly gay nominee?


Posted by: Witt | Link to this comment | 05-10-10 4:24 PM
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- War powers
- Non-war powers of detention
- Habeus corpus
- Corporate personhood
- Copyright and patents
- Individual rights (as codified in the Bill of Rights)
- Treaties and international relations

1-5 were not at particularly big issues in 1990 (and the copyright/patent jurisprudence of the SCOTUS is vanishingly small). "Corporate Personhood" is not something that the SCOTUS deals with at all (I guess you're talking about Citizens United, but that's not really the right way of thinking about that issue).

"Individual rights" are always a big deal but that includes a zillion different topics. Treaties and international relations usually come up, but in different ways over time.

The law moves over time and different things matter.


Posted by: Robert Halford | Link to this comment | 05-10-10 4:31 PM
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349 is right.


Posted by: nosflow | Link to this comment | 05-10-10 4:31 PM
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I reiterate that this seems to me to be an unfounded description of her.

Caveat: I have read approximately 0 in-depth analyses of this person's work output or other writings.

LB, if you were nominated for the Supreme Court tomorrow, could anybody say such a thing about you, and have it be remotely believed? What about if one of your co-workers were nominated?

I just sat here and mentally came up with a list of dozen smart, interesting people in their 30s, 40s, and 50s that I know. None of them are activists and none of them have particularly public jobs. ALL of them are on record both formally and informally as holding actual positions on issues.

It takes effort in our world not to be on record -- and I don't care what people say her students came away thinking -- someone who's put in that kind of effort to not being nailed down makes me mistrustful.


Posted by: Witt | Link to this comment | 05-10-10 4:31 PM
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So, wait, now I'm confused again. Is the claim that it would be a mistake to nominate an openly gay individual to the Supreme Court (a political mistake, not a moral mistake, obviously it goes without saying), because the right would raise hell? I don't like that standard.


Posted by: Brock Landers | Link to this comment | 05-10-10 4:32 PM
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I wish I knew what Kagan thought about what we think about what we know about what people know about what she thinks about things that we think we want to know what she thinks about.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 4:33 PM
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362 is ridiculous. She's taken plenty of stands on issues, including in public life, law review articles, things she's done as a dean at Harvard, etc. The fact that she doesn't have a personal manifesto written about all conceivable legal issues that would come before her is not really evidence that she's never taken a side on any issue ever; I would be pretty shocked if the bosses she's worked for, students she's taught, and journals that published her writings thought so.


Posted by: Robert Halford | Link to this comment | 05-10-10 4:35 PM
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360: So if I understand you correctly, you're saying not that there will be wholly new issues that are hot-button topics, but that the facets of old, established legal fights that come up for new wrangling will be unforeseen? More or less?

And pretend I punctuated the last paragraph in 362 properly.


Posted by: Witt | Link to this comment | 05-10-10 4:36 PM
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362: Not counting pseudonymous writing here? I've never done anything professionally that involved taking a position on a political issue, and I've never written anything political other than personal letters or emails. This wasn't conscious avoidance, just that it's never come up. I've expressed my political opinions orally to coworkers and friends, but there doesn't seem to be any reason to think she hasn't.

What kind of public record do your friends have? Do they write op-eds, or letters to the editor? (Come to think, I've written a couple of letters to the editor, but I think only one's ever been published, and it was fairly anodyne.) Or is there a category of formal political-position taking that I'm not thinking of?


Posted by: LizardBreath | Link to this comment | 05-10-10 4:37 PM
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366 -- Yes, that's exactly what I'm saying. "Hot-Button" was a lazy shorthand.


Posted by: Robert Halford | Link to this comment | 05-10-10 4:38 PM
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365 seconded. I'm not sure what 362 even means. "I abhor the military's discriminatory recruitment policy," she said, describing it as a "moral injustice of the first order." How is that not an actual positions on an issue?


Posted by: Brock Landers | Link to this comment | 05-10-10 4:38 PM
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I'd really like to know why Kagan painted TURK 182 all over the city.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 4:39 PM
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363: Brock, you said you didn't see why her orientation mattered. It matters because it would (might) cause a shitstorm. That doesn't mean it would be a mistake to nominate her, just that it wouldn't be neutral -- her orientation would be likely to have significant political effects.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:39 PM
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And what Halford said in 365. She's taken political positions -- fewer, publicly, than a politician her age would have, but not none.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:41 PM
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371: I would understand "matters" here to mean "makes it, on margin, a worse [or better] idea to nominate her". If you just mean "might have some conceivable effect, but not one that should be taken into consideration", then I'm back to "who cares?"


Posted by: Brock Landers | Link to this comment | 05-10-10 4:44 PM
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373: In 363, you said "Is the claim that it would be a mistake to nominate an openly gay individual to the Supreme Court (a political mistake, not a moral mistake, obviously it goes without saying), because the right would raise hell? I don't like that standard." And bully for you for saying that, I don't like that standard either.

But it doesn't seem impossible to me that the shitstorm would have actual political costs, like losing additional seats in the House or Senate in November. I'm not Nate Silver, and even he doesn't know for sure, but it's seems plausible to me that there would be tangible costs associated with confirming out lesbian Elena Kagan as opposed to closeted Elena Kagan. At which point "Who cares" is whoever ends up paying the political costs.

Saying that the right thing to do is to bite the bullet and bull through is different from saying that it's going to be cost-free to do so.


Posted by: LizardBreath | Link to this comment | 05-10-10 4:50 PM
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"who cares?"

Again, I'm not sure I agree with this analysis, but it's certainly a common one: A lot of not-very-political people that I know, especially value Obama because he's so "civil" and he isn't "divisive" and "partisan." (Actual quotes from conversations with them.)

So allowing a SC nominee process to become an all-out battle in the culture wars is not only bad because the nominee might not get confirmed, it's bad because it damages the president's ability to accomplish other parts of his agenda, because the conflict itself is so off-putting to people who were only middling supporters to begin with, and because they are likely to blame HIM for "inflaming" the conflict.


Posted by: Witt | Link to this comment | 05-10-10 4:52 PM
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LB-pwned.

368 - okay, that makes much more sense. I was trying to figure out what category of cases I was missing.

I think I'm just too uninformed to continue the discussion about policy positions that a nominee may or may not have taken.

Although I will point out that IMO the veil of loosely pseudonymous blogging would last about 0.2 seconds under the glare of a SC nomination, so no, I don't agree that there is no "public" position on political issues.


Posted by: Witt` | Link to this comment | 05-10-10 4:57 PM
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But it doesn't seem impossible to me that the shitstorm would have actual political costs, like losing additional seats in the House or Senate in November.

That doesn't seem impossible to me either. But does it seem more like than that the shitstorm would have actual political benefits, like gaining additional seats in the House or Senate in November? Because that seems as likely to me. I can't imagine there's 1 in 10 people in this country who would view homosexuality as a disqualifying factor for a supreme court justice.


Posted by: Brock Landers | Link to this comment | 05-10-10 4:59 PM
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Maybe 2 in 10.


Posted by: Brock Landers | Link to this comment | 05-10-10 4:59 PM
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Oh, sure, I'd be outed in a hot minute. But I could easily never have started blog commenting (particularly if I were a couple of decades older) and without the commenting and later blogging, I wouldn't have any record at all.


Posted by: LizardBreath | Link to this comment | 05-10-10 5:00 PM
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I can't imagine there's 1 in 10 people in this country who would view homosexuality as a disqualifying factor for a supreme court justice.

Wait, seriously? In a country where Newsweek is publishing articles claiming that homosexuality is a disqualifying factor for playing a straight dude in a play? A country where a grand total of zero pro athletes are openly gay? A country where school districts will cancel their prom lest a gay student attend? A country where Ricky Fucking Martin felt obliged to stay in the closet for decades? C'mon now.


Posted by: Sifu Tweety | Link to this comment | 05-10-10 5:25 PM
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within the broad range of centrist/legal elite/Democratic Party types, the people we're talking about when we're talking about an Obama SCOTUS nominee, the amout of unpredictable drift will completely swamp whatever minor differences one can intuit by reading tea leaves in judicial opinions or whatever.

I don't believe this for one second. Kagan had a mediocre, Bush-sympathizing record on Presidential power during a period when issues about abuse of executive power were at the top of the news for years straight! This isn't reading tea leaves. It's goddamn obvious how little she cares about these issues and how sympathetic she is with the wrong side.

From NY Times --

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law -- indefinite detention without a trial -- even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan's support for an elastic interpretation of the "battlefield" amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.



Posted by: PGD | Link to this comment | 05-10-10 5:25 PM
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378:And they'll all turn out to vote in November. Midterms are about intensity and turnout, and usually based more on anger and hate than gratitude and optimism.

Remember Ohio in 2004? Michigan? If I were to guess, the Kagan nomination will lose us Democrats seats. Just a couple.


Posted by: bob mcmanus | Link to this comment | 05-10-10 6:01 PM
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375:Kagan is a good "bud" of Obama's with simpatico views and temperament. I think that is enough to get her the nomination.

The only possible strategy is the negative one of Obama trying to get as conservative a Congress as possible from the midterms so Obama, Rahm, Simpson, and Peterson can gut SS and Medicare.

I think that might happen in the lame duck session anyway.


Posted by: bob mcmanus | Link to this comment | 05-10-10 6:06 PM
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I can't imagine there's 1 in 10 people in this country who would view homosexuality as a disqualifying factor for a supreme court justice.

I'm not going to be able to catch up on this thread tonight, but you have to be kidding me. I would bet over three quarters of Americans think this. Also, I'm certain I don't have to speculate, if anyone had time, we could find the relevant poll data.

If Kagan is gay, her nomination depends on a gentleman's agreement among the press not to publicize it. If the information catches on, the evangelicals will be able to push at least one senator into filibustering.


Posted by: rob helpy-chalk | Link to this comment | 05-10-10 6:11 PM
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If the information catches on, the evangelicals will be able to push at least one senator into filibustering.

Maybe so. All the while finding some excuse for doing so, because of course one doesn't actually say that one objects to butch lesbians. Meanwhile, the citizenry goes wild, per LB's 348.

If I were being maximally generous, I'd consider the possibility that Obama is genius here: placing on the court two women, Latina and lesbian, in order to secure our liberties for the long term, and fuck the short term.


Posted by: parsimon | Link to this comment | 05-10-10 6:32 PM
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Dahlia Lithwick weighs in, with more quotes about inscrutability and friends who have no idea what she thinks.


Posted by: oudemia | Link to this comment | 05-10-10 6:33 PM
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Well, look, I realized 1 in 10 is low, because a surprisingly high percentage of the country is crazy. Hence 378. But I don't for a minute buy three quarters--gay marriage polls better than that, and gay marriage would necessarily have to be more controversial than a gay justice. I agree there's probably poll data.


Posted by: Brock Landers | Link to this comment | 05-10-10 6:34 PM
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386: The Toobin article she links to is weird. It's one thing to imagine that some of the people who've been asked by various news media about Kagan say that they don't know what she thinks because they want to protect her from problems in her confirmation hearings. Fine. But this isn't a case of someone being interviewed and saying "nope, no idea"; this is a case of someone writing an entire article about how he knows her well and doesn't know what she thinks. At which point one really starts to think that maybe she just doesn't talk to anyone about her political opinions. But that's impossible, right?


Posted by: essear | Link to this comment | 05-10-10 6:47 PM
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This poll says 55% would support, 40% would oppose.


Posted by: Mr. Blandings | Link to this comment | 05-10-10 6:53 PM
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Maybe we just need to watch it play out at this point now. I will say that the gay people I know who are in the closet just do play things very close the vest in general. Privacy, privacy.


Posted by: parsimon | Link to this comment | 05-10-10 6:55 PM
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388: Yeah, and Toobin was her study buddy in law school and claims she expressed no opinion to him. Maybe he's lying to protect a friend, but somehow I find "I never heard an opinion from her" more believable than "She is really progressive! I will give no evidence except for the Harvard DADT histoire!"


Posted by: oudemia | Link to this comment | 05-10-10 6:58 PM
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Honestly, the fact that Toobin is good friends with her is the biggest strike against her. But maybe that just shows how good she is at maintaining connections.

To 381: what makes you think any plausible candidate would be better?


Posted by: Robert halford | Link to this comment | 05-10-10 7:00 PM
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Toobin was her study buddy in law school and claims she expressed no opinion to him

If you read carefully, you'll note that this is not, in fact, what the article says. He just says that her views are "something of a mystery" -- which is exactly what you'd expect him to say.

Obviously, in this climate, no one is going to go on at length about private conversations on political topics they've had with her. But Jesus Christ, she served as a Thurgood Marshall clerk, worked in the Clinton White House, works in the current White House as Solicitor General -- it's not like she hasn't taken political positions or is some kind of floating ideological cipher. She'll be a reliable centrist Democrat.


Posted by: roberto halford | Link to this comment | 05-10-10 7:04 PM
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343

You can't be serious about "Who gives a shit". The socially conservative right gives a huge shit. The right thing to do is probably to bulldoze them, but you can't be confused about what the obstacle is to confirming an openly gay Justice.

Why would the socially conservative right be any happier about a secret gay? Particularly if as claimed above it is not very secret. Do you expect them not to find out? Or are they ok with gays as long as they are ashamed?


Posted by: James B. Shearer | Link to this comment | 05-10-10 7:07 PM
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Or are they ok with gays as long as they are ashamed?

I'm not sure if this was intended as a rhetorical question, but yes, many conservatives say things like, "As long as they aren't public about it, I can tolerate it."


Posted by: politicalfootball | Link to this comment | 05-10-10 7:09 PM
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I have to say, I'm still really wrestling with Bave's comment on "out" versus "closeted." If I understood correctly, being open with friends/family, but not advertising your sexuality to strangers and acquaintance is still, to some degree closeted. Seems like such an awful pressure. I could never be broadly open about my sexuality. But somehow the idea that I'm being a prude doesn't seem half as distressing as thinking it means hiding who I am.


Posted by: Di Kotimy | Link to this comment | 05-10-10 7:12 PM
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To 381: there's this.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:13 PM
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But that's impossible, right?

I think that is impossible.

I think, in fact, that it's such a transparent lie that it speaks in Kagan's favor. Legal scholars are not going to be tight friends with people who have no opinions on matters pertaining to legal scholarship. The fact that credible people are willing to cover for her suggests that the things they are covering for aren't bad.


Posted by: politicalfootball | Link to this comment | 05-10-10 7:14 PM
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393: This is more of that quotation:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she's a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

He is claiming he doesn't know about her judgments, values, and politics -- but is an extremely good friend of hers. Look, I don't think she wants to overturn Roe, but another friend of hers told NPR, according to the Lithwick article, that Kagan is "the single most competitive and most inscrutable person I have ever known." So I am pushing back against the idea that is unfair to speculate that she is the same sort of hyper-ambitious cypher that John Roberts was. I just wish she were as far left as Roberts is right.


Posted by: oudemia | Link to this comment | 05-10-10 7:16 PM
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251

What exactly do people fear? ...

That she is an empty suit being promoted for no good reason into a position she won't be able to handle?


Posted by: James B. Shearer | Link to this comment | 05-10-10 7:19 PM
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400: Kobe could not have played to form any better, James. I salute you.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 7:21 PM
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So I am pushing back against the idea that is unfair to speculate that she is the same sort of hyper-ambitious cypher that John Roberts was. I just wish she were as far left as Roberts is right.

I wasn't arguing that it was unfair to have that speculation -- I think that the "John Roberts of the left" probably gets it about right. I do find the notion that she's somehow not on the left or someone who has never put forth a political view a bit silly, since there's lots of evidence out there about her general politics, just as there was for Roberts.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:21 PM
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Or, let me put this another way: Did you people have any better sense of where Sonia Sotomayor (another famously cautious and ambitious lawyer) stood on political questions when she was nominated? I mean, other than "respected lawyer, centrist Democrat, smart"? Because I sure didn't, and you sure couldn't get that information from reading her opinions.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:25 PM
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402: To be clear, I have nothing against ambition, per se, just that if this is a case of a lifetime of non-opinion-voicing and semi-closetedness in order to become a SC justice (like her weird high school picture!), well, that's creepy. (And that does seem to be the case with Roberts.) But, as teraz says above, maybe now that her dream is achieved, she will let her freak flag fly and surprise us all.


Posted by: oudemia | Link to this comment | 05-10-10 7:33 PM
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The fact that credible people are willing to cover for her suggests that the things they are covering for aren't bad.

?? As a general principle, I do not subscribe to this idea. Credible people cover for things all the time that are patently offensive to straight-out illegal. Heck, I'm about as obnoxiously moralistic as it's possible to be, and I've arguably covered for people doing bad things in the service to (what I delude myself to believe are) higher ends.


Posted by: Witt | Link to this comment | 05-10-10 7:35 PM
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396: There is some degree of work you have to do if you want to stay out of the closet, I've found. People often assume I'm straight; that's not an offensive assumption at all, it's just wrong in my case. So if it's someone I'm going to be interacting with a lot, I have to make an effort to mention my boyfriend or talk about the hotness of Jake Gyllenhaal or something. I don't really do this for political reasons, although of course there's a political aspect to it. I just find that if I don't preemptively signal that I'm not straight, I end up helping to perpetuate a misunderstanding, and that makes me uncomfortable. My being gay is a really important thing about me, although not the most important thing, and it's weird to have a friendship or even a close working relationship with someone who doesn't have this important fact.

If you're straight, you're not in the closet about your sexuality, no matter how private you may be about your personal life. If you're queer, you are closeted unless you have made your sexuality part of the record, so to speak -- coming out does involve giving up some degree of privacy, although it's not like you have to disclose your favorite sex acts or even your relationship status.


Posted by: Bave Dee | Link to this comment | 05-10-10 7:52 PM
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I am now totally flummoxed by the White House's reaction to the first reports of Kagan's orientation. Honest to god, prior to this thread, I assumed based on the administration reaction that she wasn't gay, because if she has a long-term partner, there was no way that wasn't coming out between nomination and hearings. Really, a 100.0% probability. And there's no way the White House didn't know, so surely they weren't caught off guard. This had to be the predetermined response, and I can't make any strategic sense of it.


Posted by: apostropher | Link to this comment | 05-10-10 7:55 PM
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Yeah, I agree with 407.


Posted by: Robert Halford | Link to this comment | 05-10-10 7:56 PM
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407: I have been wondering the same thing. The only remotely plausible thing I can come up with is that the person who issued the actual denial was a lightweight and fucked up, wording it as poorly as possible, and turning a "How dare they speculate!" into "This is a false charge!" (Charge! Ugh!)


Posted by: oudemia | Link to this comment | 05-10-10 8:01 PM
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Is there a link to this denial?


Posted by: Sifu Tweety | Link to this comment | 05-10-10 8:06 PM
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Is this the relevant denial? Because this one is not explicitly denying that she's gay, although it's pretty damn unclear.


Posted by: Robert Halford | Link to this comment | 05-10-10 8:07 PM
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Or, reading more carefully, there's no denial except from an unnamed official, not as an official statement. It's just bizarre, given that this has to have been an issue they prepared for.


Posted by: Robert Halford | Link to this comment | 05-10-10 8:09 PM
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Honest to god, prior to this thread, I assumed based on the administration reaction that she wasn't gay, because if she has a long-term partner, there was no way that wasn't coming out between nomination and hearings. Really, a 100.0% probability. And there's no way the White House didn't know, so surely they weren't caught off guard. This had to be the predetermined response, and I can't make any strategic sense of it.

If there's ambiguity, and the right wing attacks her with homophobic attacks, that encourages us to abandon our misgivings about her and rally around her because we hate the right wing so much. It worked for Sotomayor.


Posted by: Cryptic ned | Link to this comment | 05-10-10 8:14 PM
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411: That's the only one I can find--and not comfortable with it being Howard "Asshat" Kurtz's column.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 8:17 PM
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Here you go.

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers."

and

A White House spokesman, Ben LaBolt, said he complained to CBS because the column "made false charges."

Posted by: oudemia | Link to this comment | 05-10-10 8:18 PM
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I think Sullivan has the answer to Brock's question about the relevance of Kagan's sexual orientation here. The curiosity that people have on this subject seems entirely reasonable to me. I think it plainly matters.


Posted by: politicalfootball | Link to this comment | 05-10-10 8:18 PM
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415 -- Well, right, but notice that they give themselevs the tiniest bit of an out. It's not clear what exactly the "false charges" or "lies" are -- Is she gay? Is she out? Did Domench get some other facts wrong? I agree that it reads like a straight denial, and it would be awkward to retract if she does turn out to have a long term partner, but it's not quite one, especially as filtered through Kurtz's column.


Posted by: Robert Halford | Link to this comment | 05-10-10 8:22 PM
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Ah, pwned. That seems like a denial to me. "False charges"? "Old stereotypes"? Sam Stein at HuffPo says the White House says she's straight, but that sounds like he's paraphrasing.


Posted by: oudemia | Link to this comment | 05-10-10 8:23 PM
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Whenever i see 'Goodwin Liu' read it as 'godwins law' and think 'huh yeah i guess she WOULD be a little too extreme'


Posted by: yoyo | Link to this comment | 05-10-10 8:24 PM
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415: And those particular statements are not as clear that they are saying she is not gay--the latter possibly attacking her being "out". There is an unsourced claim from a White House official saying "not a lesbian", but you are hearing that via Kurtz. And the original CBS blogger's correction also only claimed that she was not out of the closet (but then of course that was Ben Domenech ...). Halford pwnage, but I agree with him that they left it slightly open.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 8:27 PM
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The "charges" could be w/r/t "out." But I don't see how "applying old stereotypes to single women with successful careers" can be. You know? Those stereotypes about out lesbians, not the closeted ones.


Posted by: oudemia | Link to this comment | 05-10-10 8:30 PM
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370 is awesome.

The curiosity that people have on this subject seems entirely reasonable to me. I think it plainly matters.

This is kidding, right? Sullivan's post is idiotic. If she were married, and therefore if she had a husband, it would be a matter of public record. So she's not married. Google inquiry fulfilled.


Posted by: Jesus McQueen | Link to this comment | 05-10-10 8:32 PM
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This is no good at all.

As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion rights groups.
Indeed, the memo is more of a political calculation than a legal brief, but Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional.

So that sure sounds like her reasonableness to conservatives come from capitulation, as it usually does. Bleah.


Posted by: oudemia | Link to this comment | 05-10-10 8:34 PM
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415: Read Kurtz again. He's very careful, and very clear that no named source makes a claim about Kagan's sexuality.

Dunn and LaBolt call Domenech a liar, but Kurtz is pretty clear that Dunn and LaBolt make no claims about Kagan's sexuality.

Of course, Dunn and LaBolt are right. Kagan isn't openly gay. CBS and Domenech acknowledge this, leaving only Kurtz's unnamed source to suggest that Kagan isn't gay.


Posted by: politicalfootball | Link to this comment | 05-10-10 8:36 PM
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421: Those stereotypes about out lesbians, not the closeted ones.

Right, but she merely says that is what he is doing, playing on the stereotype, not that his conclusion is wrong.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 8:39 PM
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424: I still don't see how "applying old stereotypes to single women with successful careers" is a claim about openess and not about her sexuality.


Posted by: oudemia | Link to this comment | 05-10-10 8:40 PM
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Those stereotypes about out lesbians, not the closeted ones.

No. Those stereotypes are about single women past a certain age - a group that includes people who aren't lesbians at all.

Kurtz is careful about this. Dunn, in the Kurtz account, is silent about Kagan's sexuality.


Posted by: politicalfootball | Link to this comment | 05-10-10 8:41 PM
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423: but it sounds like she didn't think it would survive a legal challenge?


Posted by: Sifu Tweety | Link to this comment | 05-10-10 8:41 PM
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425: Well, then I guess that, to me, is at such a deep level of disingenuousness as to be indistinguishable from a lie. "She is an open lesbian." "There you go again applying stereotypes about single women."


Posted by: oudemia | Link to this comment | 05-10-10 8:42 PM
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428: Yeah, maybe. I mean, it's clear she wanted him to support it in order to mollify the Republicans and keep them from overriding his veto of a stricter bill.


Posted by: oudemia | Link to this comment | 05-10-10 8:47 PM
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430: Which may or may not have been the right political calculation, but supporting a bad outcome to avoid a worse outcome doesn't tell us anything about her own views on either constitutional or statutory abortion law.


Posted by: Not Prince Hamlet | Link to this comment | 05-10-10 8:51 PM
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430 and many other comments: She's clearly one hell of an inside political player, as getting the gig at Harvard Law showed (the CT post was almost charming in it's revealed naïveté--fish discovering water is wet). And a big part of that package is revealing as little as possible on actual policy. Everyone is of course free to project onto that their hopes and fears. She is about what I would expect from Obama and I am fine with that in the context of the politics of 2010.


Posted by: JP Stormcrow | Link to this comment | 05-10-10 9:00 PM
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This is kidding, right?

I can't escape the feeling that I'm talking past everyone, since I think I'm being uncontroversial and you find me absurd. Let's rewind this conversation, as I see it:

Brock started with this observation in 294:

I don't understand why her sexual orientation matters.

Brock (in my opinion) later goes on to make it clear that he's conflating two issues: Whether it does matter, and whether it should. matter.

As best as I can reckon, he's claiming a negative on both: It neither does matter, nor should it. I disagree on both.

It does matter. The anonymous White House official may have even thought it mattered enough to lie about it. Homosexuality is not well tolerated in this country. It matters.

Furthermore, it should matter. People who say that Sotomayor's race should have been irrelevant are wrong. Likewise Kagan and her sexual orientation. It should be something that people think about when they consider her candidacy.

Really, isn't this obvious? Should Thurgood Marshall's race have mattered? Did it matter? The answers seem self-evident to me - yes and yes. Those answers are so self-evident that I thought I was saying everything that needed to be said in 306.


Posted by: politicalfootball | Link to this comment | 05-10-10 9:06 PM
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I'm not trying to be willfully obtuse, but I still don't see in what sense it should matter. I can see how it does matter to different people in different ways, or maybe to most people in a historical-milestone sense, but Sullivan seems to think that it should be presented as pertinent information, and I can't fathom that. How, in what context and to what purpose, is it relevant? As for the race analogy, I think this is a good case for the analogy ban. It's not as though Marshall was rumored to be black.


Posted by: Jesus McQueen | Link to this comment | 05-10-10 9:30 PM
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To 381: what makes you think any plausible candidate would be better?

I think Diane Wood would have been confirmed easily.

397: OK, that's something.


Posted by: PGD | Link to this comment | 05-10-10 9:33 PM
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As for the race analogy, I think this is a good case for the analogy ban. It's not as though Marshall was rumored to be black.

There have been plenty of people rumored to be black over the years. Babe Ruth, for example. I can't think of a Supreme Court candidate though.


Posted by: Cryptic ned | Link to this comment | 05-10-10 10:00 PM
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Warren Harding: rumored to be black

Abraham Lincoln: rumored to be black

Andrew Jackson: rumored to be black


Posted by: Cryptic ned | Link to this comment | 05-10-10 10:07 PM
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Furthermore, it should matter. People who say that Sotomayor's race should have been irrelevant are wrong.

Minorities, women, and gays always have more empathy than white privileged straight folks? Sometimes? More often than not? Is this quantifiable? Are there never people surviving oppression and hardship who become closed, bitter, and callous as a result if their experience? Need I give examples?

Maybe you can predict people's characters on the basis of their backgrounds, but I have gotten all stupid and ignorant in my old age. All the exceptions have taken from me the certainty of youth.


Posted by: bob mcmanus | Link to this comment | 05-11-10 12:01 AM
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Vicky Christina Barcelona was brilliant, and everything I like in a recent Woody Allen movie. I think Allen has gotten immeasurably better as he has aged, giving his intuitions and his actors dual-natures (he underdirects, which is not the same as encouraging improvisation) to do a lot of the work. He isn't overthinking his material, and getting Chekhovian in the best way.

A good comparison is Match Point vs Crimes and Misdemeanors. MP is better, because Allen has leaned how to show rather than tell. He is no longer beating us over the head with his profundity and his messages. But a lot of his old intellectual fans loved all the Allen and Waterston and Landau babbling on about the meaning of life, and think his movies now are slight and shallow.


Posted by: bob mcmanus | Link to this comment | 05-11-10 12:59 AM
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And Bardem could be the best actor I have ever seen.


Posted by: bob mcmanus | Link to this comment | 05-11-10 1:00 AM
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Minorities, women, and gays always have more empathy than white privileged straight folks?

Sure. Along with bonus points for veterans on Civil Service exams, and the moral justification for warfare tactics depending on relative force levels.

In other words, bullshit factors to make the result come out as wanted.


Posted by: Biohazard | Link to this comment | 05-11-10 5:20 AM
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Was someone arguing here that women, minorities, and homosexuals are more empathetic? Because I seem to have missed that.


Posted by: Di Kotimy | Link to this comment | 05-11-10 6:27 AM
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The print edition of the WSJ today ran a front page picture of Kagan playing softball.


Posted by: bizzah | Link to this comment | 05-11-10 6:32 AM
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The NYT had the same (or a similar) picture on an inside page. I was wondering if it was meant as code as well.


Posted by: LizardBreath | Link to this comment | 05-11-10 6:33 AM
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Gawker: "Sorry, but softball=lesbian."


Posted by: apostropher | Link to this comment | 05-11-10 6:40 AM
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Now, if she was playing hockey.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 6:42 AM
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Oh, undoubtedly. It strikes me as one-third a gesture of right-wing contempt; one-third self-congratulatory signalling among insiders; and one-third a warning from the press corps to the White House, to the effect that they shouldn't try to pull more stunts like yesterday's non-denial denials.


Posted by: bizzah | Link to this comment | 05-11-10 6:42 AM
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Actually that's an interesting, if wildly tangential, question: is there a sport that they could have showed Kagan playing that would not have coded as lesbian? What about an activity? Cooking?


Posted by: Sifu Tweety | Link to this comment | 05-11-10 6:43 AM
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Uh oh, this can't help.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 6:44 AM
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Huh. I never knew. My favorite wedding photo is me playing softball in the wedding dress.


Posted by: Di Kotimy | Link to this comment | 05-11-10 6:51 AM
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Just like Tom Brady and sexual harassment, it is ok to play softball as long as you are cute.

http://www.youtube.com/watch?v=gBVuAGFcGKY


Posted by: will | Link to this comment | 05-11-10 7:06 AM
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me playing softball in the wedding dress

And just look how that turned out.


Posted by: apostropher | Link to this comment | 05-11-10 7:10 AM
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442:Was someone arguing here that women, minorities, and homosexuals are more empathetic? Because I seem to have missed that.

Lawyerly trolling. Here's the line from 433:

Furthermore, it should matter. People who say that Sotomayor's race should have been irrelevant are wrong.

Another from 433:

Should Thurgood Marshall's race have mattered? Did it matter? The answers seem self-evident to me - yes and yes.

Now if race "matters" but does not imply a greater general empathy, then the question needs to be answered as to why race or gender or orientation or other life experience predictably matters. What is pdf saying? I presume a lawyer could come up with an obtuse explanation of why "life-experience" matters without any explanation of why it matters...it just does, you know.

But this goes to many arguments about promoting diversity, which have to be based on a kind of implicit essentialism. Maybe coming from the Upper West Side elite is dispositive, those folks are all...never mind.

Digby on Andy Sullivan and Richard Kim(?) on topic

(LGM (some posters) has apparently decided to oppose the nomination. What's the point?)


Posted by: bob mcmanus | Link to this comment | 05-11-10 7:16 AM
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452. Meh, she got a pretty good sounding kid out of the deal. Don't know whether she plays softball, though.


Posted by: OFE | Link to this comment | 05-11-10 7:17 AM
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I presume some here read the Yggles thread If Congress Were All Women

"But I do think there's at least some reason to believe that putting more women in office would per se lead to more progressive outcomes." ...MY

The consensus among the commenters was that any change would be much more marginal than Matt assumed.


Posted by: bob mcmanus | Link to this comment | 05-11-10 7:25 AM
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454 gets it exactly right, even though Rory doesn't play softball.

453: It matters because America is not composed solely of straight white privileged men and in a just society the positions of power will not be dominated by straight white privileged men.


Posted by: Di Kotimy | Link to this comment | 05-11-10 7:39 AM
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456:So it matters symbolically, but not at all for outcomes?

Okay.

My skepticism toward identity politics is well known. I am not going to get excited about replacing the CEO of Citigroup or the Senator from X State or the President with a minority. if it makes no difference to policy or practices.

Clarence Thomas or Libby Dole (or Lindsay Graham?) did not give me a thrill.


Posted by: bob mcmanus | Link to this comment | 05-11-10 7:48 AM
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Further to 456.1, I just want to be clear that Rory's athletic preferences do not in any way change my love for her. We are very open about her soccer preferences.


Posted by: Di Kotimy | Link to this comment | 05-11-10 7:58 AM
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Rory doesn't play softball

Many people don't start experimenting with softball until college.


Posted by: apostropher | Link to this comment | 05-11-10 8:02 AM
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Many people don't start experimenting with softball until college.

Some become avid and highly visible softball players in college, then abruptly give it up when they enter the professional world.


Posted by: KR | Link to this comment | 05-11-10 8:35 AM
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We are very open about her soccer preferences.

What adults do in private is no business of mine. But I won't stand for them recruiting my impressionable children for their "youth soccer leagues". Shameless, that's what they are.


Posted by: KR | Link to this comment | 05-11-10 8:37 AM
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For you, bob: a link (PDF file of Nancy Fraser's "Feminism, Capitalism and the Cunning of History").


Posted by: Mary Catherine | Link to this comment | 05-11-10 8:43 AM
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Thank you. I do run into these kinds of discussions, more often centered around race/ethnicity/colonialism than feminism, on the left blogs and the books I read.

It amused me that Fraser uses the phrase "state-organized capitalism" repeatedly. The easier "state capitalism" has bad bad connotations on the intellectual left. (Stalinism)


Posted by: bob mcmanus | Link to this comment | 05-11-10 9:18 AM
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I am not going to get excited about replacing the CEO of Citigroup or the Senator from X State or the President with a minority. if it makes no difference to policy or practices.

Ah, but the ascension of a non-white person to such a position is, by itself, a change in policy and/or practices. The fact that it doesn't fix everything - or, indeed, anything beyond the thing it fixes - doesn't make it immaterial.


Posted by: politicalfootball | Link to this comment | 05-11-10 9:42 AM
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Now, if she was playing hockey.

Or better yet, field hockey, a sport dominated AFAICT by lesbians and South Asians.


Posted by: Jesus McQueen | Link to this comment | 05-11-10 9:55 AM
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448.1: Soccer? I don't think that codes lesbian. Softball yes, basketball yes, rugby good lord yes... I don't think track codes gay. What other sports are there?


Posted by: LizardBreath | Link to this comment | 05-11-10 9:57 AM
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466: Golf. That just codes as ambitious, right?


Posted by: peep | Link to this comment | 05-11-10 10:01 AM
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464: Exactly. Demonstrating that being gay, a woman, a minority is not a barrier to getting the job is still a pretty important policy/practice. The ratio of men to women at each step on the career ladder at a particular firm gives me some information about how ow thick the glass ceiling is and where it's placed. Unless I'm willing to buy that the disproportionate representatation at the top accurately reflects the comparative talents of men vs women. Which I'm not.


Posted by: | Link to this comment | 05-11-10 10:08 AM
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is there a sport that they could have showed Kagan playing that would not have coded as lesbian

How about basketball?

She went on to win two plum clerkships, first for Judge Abner Mikva, of the federal appeals court in Washington, and then for Justice Marshall, where she impressed the male clerks by joining their pickup basketball games in the court's top-floor gym, the so-called "highest court in the land." Harry Litman, a fellow clerk and former United States attorney in Pittsburgh, remembers Ms. Kagan as a "plucky" player. She played guard.

(Quoted passage pulled from here but I think it's amusing that Henry Abbott has been picking up all the "people in or associated with the Obama administration that play basketball" stories.)


Posted by: NickS | Link to this comment | 05-11-10 10:11 AM
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470

Wolf-hunting by helicopter.


Posted by: apostropher | Link to this comment | 05-11-10 10:12 AM
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471

Powder-puff football.


Posted by: heebie-geebie | Link to this comment | 05-11-10 10:17 AM
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That softball picture was from the U of C Law School softball game -- a once-a-year event. I recall it being in the law school facebook when I was a 1L.


Posted by: bailey | Link to this comment | 05-11-10 11:02 AM
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Nate SILVR: Value Over Replacement Justice.


Posted by: JP Stormcrow | Link to this comment | 05-11-10 8:03 PM
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474

Foxy boxing.


Posted by: Turgid Jacobian | Link to this comment | 05-11-10 8:10 PM
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If you could combine 470 and 474, somehow.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 8:14 PM
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Hunting hot chicks in your boxers?


Posted by: heebie-geebie | Link to this comment | 05-11-10 8:16 PM
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I suppose it doesn't suggest lesbian.


Posted by: heebie-geebie | Link to this comment | 05-11-10 8:17 PM
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Foxy helicopter box hunting?

Hm. Maybe that's problematic.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 8:19 PM
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479

Attaching propellers to foxes' heads and then skeet shooting at them?


Posted by: heebie-geebie | Link to this comment | 05-11-10 8:20 PM
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489: no, shooting them with giant oversized stuffed rifles firing beanbags.


Posted by: Turgid Jacobian | Link to this comment | 05-11-10 8:23 PM
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(and then take a shot of Baileys! Ohmigod, riiiight?!?;) @-}~#)


Posted by: Turgid Jacobian | Link to this comment | 05-11-10 8:25 PM
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481: Baileys + Sambuca.


Posted by: oudemia | Link to this comment | 05-11-10 8:27 PM
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