Indiana Win For Tea Party Encourages Further Polarization and Gridlock

The defeat of Richard Lugar by Richard Mourdock in Indiana last might might have consequences far worse than changing one Senate seat from conservative to extremist right wing. I am, of course, assuming that Indiana doesn’t provide another shock as when this conservative state went for Barack Obama in 2008. Jonathan Chait has a warning as to what could be the most serious outcome:

The most important and alarming facet of Lugar’s defeat, and a factor whose importance is being overlooked at the moment, is one of the things Mourdock cited against him: Lugar voted to confirm two of Obama’s Supreme Court nominees. Obviously, Lugar would not have chosen to nominate an Elena Kagan or a Sonia Sotomayor. But he was following a longstanding practice of extending presidents wide ideological latitude on their Supreme Court picks. In the absence of corruption, lack of qualifications, or unusual ideological extremism, Democratic presidents have always been allowed to pick liberal justices, and Republican presidents conservative ones. That’s not a law. It’s just a social norm.

But the social norms that previously kept the parties from exercising power have fallen one by one. Under Obama’s presidency, Republicans have gone to unprecedented lengths to block completely uncontroversial appointments, paralyzing the government and using the power to paralyze government to nullify duly passed laws. It is bringing on an approaching crisis of American government.

The social norm against blocking qualified, mainstream Supreme Court nominees is one of the few remaining weapons the Republican Party has left lying on the ground. But if Republican senators attribute Lugar’s defeat even in part to those votes for Kagan and Sotomayor, which seems to be the case, what incentive do they have to vote for another Obama nominee? And then what will happen if he gets another vacancy to fill – will Republican senators allow him to seat any recognizably Democratic jurist? Especially as the Supreme Court interjects itself more forcefully into partisan disputes like health care, will it become commonplace for the Court to have several vacancies owing to gridlock, for the whole legitimacy of the institution to collapse?

Not to mention the most blatantly political and unjust action by the Supreme Court since dominated by conservatives–blocking a recount and choosing the president in 2000.

The outcome is certainly not clear. Republicans have gotten away with seriously hindering the Obama administration by blocking nominees without justification, but a Supreme Court Justice is a far more high profile position. People who are unaware of how much the Republicans have obstructed progress are more likely to notice this and perhaps begin to realize how unreasonable the Republicans have become in recent years. The Republicans very well might pay a political price if they repeatedly filibuster moderate liberal Supreme Court nominees, and this might also lead to changes in Senate rules. This might not even be limited to the Supreme Court. Would anyone really put it past the Republicans these days to filibuster replacement appointees for members of the Cabinet who choose not to remain in Obama’s second term.

This all assumes that Obama is reelected, but this is hardly certain (as James Carville warns). Lugar’s defeat will scare other Republican Senators into following the extremist Tea Party line. While Mitt Romney might prefer a more moderate course,  assuming he doesn’t mean much of what he has said this year, it is hard to see him standing up to the far right, forcing him to govern from the far right regardless of what he might prefer.

Leaving political office often does provide the more sane (or less crazy if you prefer) Republicans to say what they could not say while in office. Lugar has warned against the hyper-partisanship we are now seeing:

If Mr. Mourdock is elected, I want him to be a good Senator. But that will require him to revise his stated goal of bringing more partisanship to Washington. He and I share many positions, but his embrace of an unrelenting partisan mindset is irreconcilable with my philosophy of governance and my experience of what brings results for Hoosiers in the Senate. In effect, what he has promised in this campaign is reflexive votes for a rejectionist orthodoxy and rigid opposition to the actions and proposals of the other party. His answer to the inevitable roadblocks he will encounter in Congress is merely to campaign for more Republicans who embrace the same partisan outlook. He has pledged his support to groups whose prime mission is to cleanse the Republican party of those who stray from orthodoxy as they see it.

This is not conducive to problem solving and governance. And he will find that unless he modifies his approach, he will achieve little as a legislator. Worse, he will help delay solutions that are totally beyond the capacity of partisan majorities to achieve. The most consequential of these is stabilizing and reversing the Federal debt in an era when millions of baby boomers are retiring. There is little likelihood that either party will be able to impose their favored budget solutions on the other without some degree of compromise.

Unfortunately, we have an increasing number of legislators in both parties who have adopted an unrelenting partisan viewpoint. This shows up in countless vote studies that find diminishing intersections between Democrat and Republican positions. Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don’t succeed for long if they stop appealing to voters who may disagree with them on some issues.

John Danforth, who has often been a voice for reason after leaving the Senate, had this to say about Lugar’s defeat:

THINKPROGRESS: What do you think is happening here?

DANFORTH: An effort by some, and apparently a large number, 60% in Indiana, to purge the Republican Party and to create something that’s ideologically pure and intolerant of anybody who does not agree with them — not just on general principles, but right across the board.

THINKPROGRESS: Do you stand by your view that GOP is beyond hope?

DANFORTH: If this trend succeeds, yeah. What they will be left with, if indeed they want to purge the party of all but people who have a particular ideological slant… it’s not a way to win elections, it’s not political sustainable. It might make them feel good for a time but doesn’t work, it hasn’t worked. It didn’t work in Nevada or in Delaware in last election. They won nominations but couldn’t win elections. I don’t know how you win elections without getting 51% of the vote. I don’t see how you’re gonna get 51% of the vote if you make it clear that people in your own party, who don’t absolutely agree with everything you want to do, aren’t wanted.

Memos Reveal Early Views of Elena Kagan

Between the BP oil spill, the incident on the relief ship heading towards Gaza, and the finale of Lost, other news seems to be getting forgotten. For example, the Supreme Court nomination of Elena Kagan remains under consideration. There has always been a question as to how liberal she is with limited information available on her beliefs. CBS News has obtained memos written when she worked as a clerk for Thurgood Marshall:

The Marshall documents are legal memos summarizing cases the Court had been asked to consider. They cover the spectrum of hot-button social issues: abortion, civil rights, gun rights, prisoners’ rights and the constitutional underpinnings for recognizing gay marriage.

On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman–and possibly undo precedents protecting a woman’s right to abortion.

“This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights,” she wrote in the 1988 memo.

She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program “amazingly sensible.” She told Marshall that state court decisions that upheld the plan recognized the “good sense and fair-mindedness” of local efforts.

“Let’s hope this Court takes note of the same,” she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan.

Kagan also wrote a memo that senators could use to question whether she believes there is a constitutional right to gay marriage.

That memo summarized a 1988 case involving a prisoner serving a life sentence in New York. He argued the state of New York was required to recognize his marriage-by-proxy in Kansas – even though such marriages were illegal in New York.

The basis of his argument was that New York had a duty under the Constitution’s Full Faith and Credit Clause to recognize his Kansas the marriage as valid. Kagan told Marshall his position was “at least arguably correct,” and recommended asking for a response from New York officials.

Then there was the recently disclosed memo on gun rights. In a case challenging the District of Columbia’s handgun ban as unconstitutional, Kagan was blunt: “I am not sympathetic.” The Supreme Court took the opposite approach two years ago, striking down the D.C. gun ban as unconstitutional.

The report summarizes this by saying the memos “show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.” Kagan’s views actual remain to a considerable degree a mystery considering that these memos deal with a very limited number of issues, were written many years ago, and were likely influenced by the judge she was working for. The memos might offer limited reassurance to those on the left who think she is not liberal enough, and will certainly provide many topics for Republicans to ask her about at her confirmation hearings.

Right Wing Claiming Kagan Is A Socialist

A few days ago I half jokingly said that we would soon be seeing “various arguments coming from the right wing noise machine as to why Kagan is the most liberal person to have ever been nominated to the Supreme Court.” I underestimated the stupidity of the right wing here. They are actually claiming that she is a socialist based upon her college thesis. As Little Green Footballs summarizes:

Kagan’s undergraduate thesis is titled, “To the Final Conflict: Socialism in New York City, 1900-1933,” and it’s a historical study of the failure of socialism in New York in the early part of the 20th century. To Erickson and his dim followers, this is all the proof they need.

Red State, which first made these claims, was forced to take down the thesis for copyright violations. When I glanced through it earlier in the day I noted items which, if taken out of context, could have been used to argue both that Kagan is a socialist and that she opposes socialism. Considering that the claim she is a socialist comes from the same people who claim that Barack Obama is a socialist makes it hard to take their claims seriously. Whatever her feelings were about socialism when in school, her public record shows that she has been a moderate, not a socialist.

Eliot Spitzer Did Not Go Out With Elena Kagan

Having Eliot Spitzer say something in your defense, especially where it involves sex, might not turn out to be a good thing. Spitzer had exactly the right thing to say here about Elena Kagan:

“I did not go out with her, but other guys did,” he said in an email Tuesday night. “I don’t think it is my place to say more.”

This is from an article at Politico on Kagan’s friends saying she is not gay in response to rumors spread by conservatives that she is. I imagine that Spitzer did Kagan a favor by both verifying she dated men and by saying he did not go out with her.

While Politico does dwell more on this type of topic, they also did run a story on some of her policy positions. This leaves me underwhelmed by the choice. Basically the story portrays her as a moderate Clintonista. One reason I supported Obama over Clinton was the hope of not returning to such positions. Hopefully a position on the Supreme Court, as opposed to one in the highly politicized Clinton administration, will result in more liberal decisions.

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.

Battles On The Left Over Kagan

While I’m not exactly excited by the nomination of Elena Kagan to the Supreme Court, I do not see this decision as worth the amount of controversy on the left as it has been receiving. The two major sources attacking the nomination have been Jane Hamsher and Glenn Greenwald. After the health care debate I’ve given up reading anything coming from Hamsher after seeing how she engages in exactly the same type of distortions as Glenn Beck and other right wing pundits. Greenwald has done enough worthwhile work for me to continue to take him seriously, and much of his criticism of Obama is valid, even if he sometimes loses perspective. He does lose me when he breaks into nonsense comparing Obama to Bush. Both have some things in common, including both being featherless bipeds, but it is their major differences which are far more significant.

Glenn Greenwald and Lawrence Lessig are engaged in quite a dispute over the Kagan nomination and each other’s integrity. The links on each of their name presents their side of the dispute while McJoan at Daily Kos has a play by play analysis. Personally I think that the fine points of this debate will soon be forgotten as we are faced with the various arguments coming from the right wing noise machine as to why Kagan is the most liberal person to have ever been nominated to the Supreme Court. I agree with Steve M. on this:

Part of my frustration with Firebagging in general is that progressives simply lack the muscle to drag not just the administration but Congress and the country all that far to the left by sheer force of will, and Firebaggers don’t seem to understand that. Unlike the teabaggers, we don’t have a multimedia news organization at our disposal that’s endlessly fed money by hit Hollywood movies. We haven’t had a Wurlitzer in operation for thirty years persuading the mainstream press that attention must be paid to us because we’re the really really authentic Americans. Our propagandists don’t dominate AM radio on every square mile of U.S. territory. We haven’t even begun the work of persuading — not hectoring, but persuading — heartland swing voters that our ideas aren’t scary, aren’t hostile to American values, and in fact are in sync with their values. We certainly haven’t persuaded enough to heartland voters to make heartland members of the House and Senate sit up and take notice, the way they carefully notice whether they’re protecting their right flanks.

We’ve got a lot of work to do to get our message across. We’re not going to get there by regularly joining right-wingers in Obama pile-ons.

So yeah, regarding the administration, I’ll keep grumbling. But I’m not going to support any move that dilutes what little power we have (and I’m not joking when I say “little power,” because even with huge congressional majorities and the White House, too much of the country is still under a Reagan/Limbaugh/Murdoch spell, and too many congressional Democrats are cowardly as a result). If you know how to get big leftward shifts to happen, really, go for it. If all you know how to do is demand them, I might take your point, but I’m going to object that you don’t have a plan.

Is She Gay? Do We Have To Know?

Andrew Sullivan has become as obsessed with the question of whether Supreme Court nominee Elena Kagan is gay as he was over whether Sarah Palin is really Trig’s mother:

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay … and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous – a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority – and the right of the huge majority to determine its rights and equality – is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice’s sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It’s especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan’s possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?

While the question isn’t entirely irrelevant, I think Sullivan has it backwards here in comparing sexual orientation to religion. We should not be prying into the sex lives of nominees. In an ideal world we also would not care about their religion–especially in an ideal world in which religious views do not impact public policy.

Mixed Views From Both Left And Right On Kagan Nomination

News of the choice of Elena Kagan to be Barack Obama’s second appointee to the Supreme Court neither has me terribly upset or very excited. Presumably this is the type of reaction which was desired by choosing someone without a very strong, or controversial, public record.

There is mixed response on both the right and the left. There are already a number of falsehoods being spread, with Media Matters debunking a long list of  myths. The Volokh Conspiracy has some preliminary thoughts which show, while doubting the claims by some on the left that Kagan is a closet conservative, she is probably the best conservatives and libertarians can hope for. Ilya Somin believes that while Kagan is a liberal she has shown openness to non-liberal views. She also writes this,  disagreeing with some of the claims coming from others on the right:

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

Kagan’s openness to non-liberal views can be a virtue but also opens her to attacks from some liberals. Glenn Greenwald has outlined the criticism of her from the left. The issue of greatest concern to both liberals and libertarians is her view on presidential power. Radley Balko of Reason writes:

She’s a cerebral academic who fits Washington’s definition of a centrist: She’s likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens’ reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama’s choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama’s decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a “tough on crime” reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system’s disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

While I would prefer a nominee who has a strong record on civil liberties issues I’m not certain there is cause to panic. Kagan has spent her time in government in the executive branch and does appear to see matters more from their perspective, but this could change as she works in a separate branch of government. Kagan’s job as Solicitor General is to argue the position of the administration but her views as a judge might not necessarily be the same. I also hope that her experience as Solicitor General has also led her to see the weakness of some administration arguments, even if she could not act upon this in her current position.

There has also been speculation as to how the appointment will affect efforts at marriage equality. William Jacobson discusses her view that, “There is no federal constitutional right to same-sex marriage.” This does not mean she is personally opposed to same-sex marriage, but that she might be unlikely to support judicial as opposed to legislative efforts to achieve this goal.

While immediate attacks from the right wing blogs were anticipated, it remains unclear as to whether the Republican Party will try very hard to block her nomination.  Seven Republican Senators did vote to confirm Kagan to be Solicitor General.   However Bob Schieffer believes that Republicans will wage a vicious fight in light of the current degree of polarization. He calls this an “especially toxic election year” as the far right members of the tea party movement are out to purge even conservative Republicans from the GOP for not being conservative enough. He believes  “you will see some Republican Senators, moderates, giving very careful consideration to their vote on Elena Kagan. In a way, a vote against her would be ‘Tea Party insurance,’ to let people know that they’re moving to the right.”