My buddy Mark Engler wrote an interesting piece for the Dissent blog on why the left should oppose the Kagan nomination. Interesting, but not convincing, at least not to me. It’s not that I like her, altho I’ve been more or less convinced by people who know the academic-law world from the inside that her publication record is perfectly adequate. On substantive political issues there’s not much to say for her, and that’s on Obama, not the “process”.
What I don’t see, tho, are what are the principled demands being made here. “Liberal justice” is almost an empty signifier; I suspect that beyond the important, but fairly narrow, areas of civil liberties and executive power, most of us on the labor or socialist left will find a wide range of legal issues on which our views and Glenn Greenwald’s sharply diverge. Just as importantly, what is the public debate that this is clarifying or polarizing? Will this fight help develop a left opposition in Congress? Does it mobilize people? Could we win? Looks like no on all counts, to me.
Being on the left can’t just mean bitching about everything, it’s got to mean staking out clear, principled positions, organizing people around them, and having concrete victories to show for it. Opposing Kagan does not seem to meet this test.
Anyway — the reason for this post, or at least its title — I was going to say all this in a comment to Mark’s Dissent post. But it turns out the Dissent blog has no comments section. Yes, Dissent does not allow comments. Doesn’t that say it all?
Hmm. . . I understand that courts are not usually a mobilizing issue. But, I remember those anti-Nader buttons from 2000 that said 'it's the supreme court, stupid" – in other words, shut up and vote democratic because that's the way to protect choice – and now we're told candidates shouldn't have to state their position for choice, or any progressive position, and that another potential nominees having been a lawyer for NARAL is disqualifying for nomination by a presumably pro-choice president. And given the last eight years, executive power is hardly a marginal issue. Also, I think Greenwald is pretty progressive on economics as well, even though civil liberties are his speciality.
BTW, I'm sure Mark would appreciate your thoughts – he's been posting these on his writing fb page due to dissent's admitted backwardness (more a generational thing than a liberal one, I would think.)
(1) This is an edited version of an email I sent to Mark. He seems to agree, basically.
(2) Pleas to vote Democratic "for the Court" were stupid then. Can't do anything with them now.
(3) You might be right about Greenwald. I need to read him more. Pending that, point conceded.
(4) I'm actually not that sure executive power is important, in the sense that I am not convinced that formal,legal rules have ever been the meaningful constraint on it. From my point of view, the most important thing the Court can do is *not* act, i.e. not challenge progressive legislation, especially in the economic sphere, in the rare cases we win it. I'm just not convinced of the value of the court's power to restrain the bad guys.
(5) I'm not saying that she's not a bad nominee, just that this is a bad fight. And also that it's bad and stupid and lame that Dissent does not have comments.
I agree that vote for the courts is stupid, and that courts are generally less important than a vital movement. But, much as people who work on choice, for example, should focus more on the grassroots where rights have eroded, I don't also see why they shouldn't be able to count on an openly pro-choice nominee from a supposedly pro-choice president.
In other words, we shouldn't look to the courts to do go, but they can do a lot of bad.
And, obviously, I completely agree with the lameness of Dissent not having comments 😉