A Non-Ideological Argument For Kagan

There are other ways to look at the nomination of Elena Kagan beyond the ideological questions. While I might have preferred someone with a stronger track record on civil liberties issues, Ezra Klein does make a compelling argument in her favor:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

Understanding this is the key to understanding the Kagan pick: Obama’s theory of negotiations is that extending an open hand makes it easier for people to see if the other side has made a fist. It both increases the likelihood of a deal and increases your chances of winning the PR war if a deal falls apart.

This is a theory that frustrates many liberals who want to see a more confrontational tone from the president, but it’s core to Obama’s theory of winning a negotiation. And the need to win negotiations is core to Obama’s — and everyone’s — theory of the Supreme Court. With four liberals, four conservatives and one center-right justice who’s willing to play the swing vote, a skilled legal negotiator who can put together a majority is more important than a sharp legal thinker whose blistering dissents can cure liberals of their Scalia envy.

It remains to be seen whether Kagan is able to negotiate better outcomes. It also remains to be seen what her views are on the court. We might be either disappointed or pleasantly surprised.

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2 Comments

  1. 1
    Brett Robinson says:

    RT @RonChusid: A Non-Ideological Argument For Kagan http://is.gd/c4Xy8 #p2

  2. 2
    Ron Chusid says:

    A Non-Ideological Argument For Kagan http://is.gd/c4Xy8 #p2

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