Liberal Kagan Moves Court 'to the Right;' Media, Left Fret

President Barack Obama was the most liberal senator before becoming arguably the most liberal president to ever lead the United States, yet Elena Kagan's nomination to the Supreme Court led some on the left and in the media to question if she would move the Court in a more conservative direction.

Kagan's nomination was labeled a “betrayal,” it caused CNN's Rick Sanchez to ask if she were a “stealth conservative,” and it led MSNBC's Rachel Maddow to claim that the Supreme Court nomination process “has become a process where nominees try to prove how conservative they are, either small 'c' or large 'c' depending on who's president.”

Kagan, currently Solicitor General for the United States, previously served as Dean of Harvard Law School and worked in the Clinton administration. She has defended Bush Administration polices regarding the War on Terror in her role as Solicitor General. This, coupled with her outreach to conservative professors and students at Harvard, and her lack of outright support concerning other hot-topic issues caused some on the left to be worried over her liberal credentials.

But Kagan, a product of New York's Upper West Side, the Ivy League and the University of Chicago, has never worked outside government and academia, and gives every indication of being a conventional liberal. She has advocated that the courts show “special solicitude for the despised and disadvantaged.” As Dean of Harvard Law School, she created an environmental law program. Also during her tenure, she banned military recruitment at Harvard Law in reaction to the military's “don't ask, don't tell” policy.” Still, that hasn't been enough to silence her critics on the left.

Conservatives, however, aren't buying it.

Elaine Donnelly, president of the Center for Military Readiness, wrote that Kagan's actions with regard to the military recruitment at Harvard and a subsequent case regarding “don't ask, don't tell” as Solicitor General demonstrated “hostility and opposition to laws protecting the culture and best interests of the American military.”

Notre Dame law professor Gerard V. Bradley noted that “Kagan is on record as saying that traditional marriage laws lack a 'rational basis.'” He further explained, “This is tantamount to saying that she would read the Fourteenth Amendment to mandate same-sex marriage across the land.

No matter. Obama's May 10 announcement that Kagan was his pick to replace retiring Justice John Paul Stevens, still caused media personalities like CNN's Sanchez and Joy Behar, and MSNBC's Chris Matthews and Maddow to question whether she was liberal enough.

“In considering a replacement for the justice who was the Court`s liberal anchor with a Democratic president, with a 59-seat Democratic majority in the United States Senate, will liberals – with whatever organization they can muster – be satisfied with a nominee whose credentials as a liberal aren`t so much evident in her record as they are expected to be a matter of faith?” asked Maddow during her May 10 program.

CBS's “Early Show” co-hosts Maggie Rodriguez and Harry Smith picked up on this theme during their May 11 broadcast. Smith told Vice-President Joe Biden, “Liberals feel let down because she would be filling a seat left by John Paul Stevens, they don't feel like she's enough – has enough gravitas to fill his shoes.”

Rodriguez told Alabama Republican Senator Jeff Sessions, “When she worked for the Clinton administration, Ms. Kagan asked the President to support a ban on all abortions of viable fetuses except when the mother's health was at risk. And some analysts have used that example to show that she may actually shift the court to the Right, compared with Justice Stevens.”

Rodriguez's reference to the abortion ban referred to a recommendation Kagan made to Bill Clinton in 1997. As a matter of tactics, she urged him to support a moderate ban instead of risking a tougher law passed by the Republican Congress.

George Washington law professor Jonathan Turley called Kagan's nomination a “betrayal” in a May 10 blog post. “For liberals, the problem is her 'pragmatic' approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result,” he wrote. “Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be the case with selection of Kagan.” 

Michael Avery, a constitutional law professor from Suffolk University told CNN on May 10 he was, “very nervous about this nomination” and “about what the future holds.” Avery even claimed, “We don't have any liberals on the Supreme Court. We have some hard right-wing ideological conservatives, and we have some moderates.” 

Despite eventually admitting that he liked Kagan, Stuart Taylor Jr. noted in a May 10 Atlantic piece, “Kagan's record suggests that she probably falls to the right of Stevens –arguably the most liberal current justice – at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.”

The New York Times assessed Kagan's nomination as a disappointment for liberals in a May 11 article. “She does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court's conservative leader, Justice Antonin Scalia,” wrote reporter Peter Baker.

Perhaps Baker spoke to Marjorie Cohn, a professor at Thomas Jefferson School of Law, about the “profile sought by the left.” In a May 10 Huffington Post column, Cohn accused Obama of “once again cowering in the face of conservative opposition” with his nomination of Kagan and bemoaned the loss of the “golden opportunity to appoint a giant of a justice who could take on the extreme right-wingers on the court who rule consistently against equality and for corporate power.” 

“Obama should have done the right thing, the courageous thing, and filled Justice Stevens' seat with someone who can fill his shoes. His nomination of Elena Kagan,” Cohn concluded, “will move the delicately balanced court to the Right. And that is not the Right thing.”

Hand-wringing over Kagan's liberal street cred and her impact on the court began over a month ago.

On April 9, The Washington Post's Ruth Marcus warned, “The likelihood of the court shifting to the right is greater than that of its moving leftward” and noted that Kagan is “viewed as more moderate than Stevens.”

 Salon's Glenn Greenwald argued on April 13, “The evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas.”

Iowa Democratic Sen. Tom Harkin lamented to Politico on April 14, “Why do conservatives always get the conservatives, but we don't get to get liberals? What the hell is that all about?”

Harkin, Greenwald, Maddow and every one else worried about the possible rightward creep of the court should take heart from an op-ed Kagan wrote after the 1980 election while at Princeton in which she anticipated a future “marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”

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