NYT:
President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.
After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.
In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.
I think Kagan is a good pick. However, that view is far from universal on the left – Glenn Greenwald, in particular, has apparently made it his life’s work to prevent her from becoming a Justice. Paradoxically, however, it seems to me likely that the left-wing outcry against her has probably made it easier to confirm her. After all, the thinking on the right wing must go, if Greenwald hates her, how bad can she really be?
UPDATE: By the way, I totally called this one back in September. đŸ˜‰
jconway says
I coincidentally read the SCOTUS blog piece on her last night and found it quite balanced and informative. I think liberals should not be disappointed with the Kagan nomination. I think she will in many respects fulfill the void left by Stevens by articulating a more orthodox liberal judicial philosophy while in many ways taking up the persuasive abilities of an O’Connor to form lasting majorities on the court.
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p>I came out as a Wood partisan a few weeks back but after reading this last night turned around to Kagan. The ‘controversial’ things she wrote about executive power do not endorse the unitary executive theory that right wing Federalist Society jurists have been advocating since the days of Meese and Bork, but rather a fairly modest opinion that the executive branch can (shocker!) have complete control over the bureaucratic mechanisms of the executive branch. Essentially the President can create, disband, and oversee offices within the executive and alter them as he see’s fit. And she forcefully argues that this is a power that helps the cause of progressives by among other things, allowing the President to act as a better regulator and watch dog.
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p>She has been endorsed by noted conservatives including Charles Fried, Jack Goldsmith, and in case you think these conservatives are disqualified since they are Bush critics, Ken Starr has even said flattering things about it. With the Mainers, Hatch, Graham, Voinovich, and Brown (?) Kagan should be able to get bipartisan confirmation and avoid a filibuster attempt.
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p>More importantly in the long term it is important to remember that the President has essentially in his first two SCOTUS appointments defended the status quo by preserving the slim conservative majority. That said a second term of Obama would both prevent a solid conservative majority from occurring while also giving him the opportunity to remake the judiciary considerably. The attempt by the Federalist Society to hijack the court has failed and this President like it or not will be able to really remake the court in his own image.
mr-lynne says
If I’m correct, it predates this back to Nixon. Cheney in particular fought hard to ‘undo the damage’ of the Nixon presidency that saw Congress re-emerge strongly in its role as a check against the executive.
jconway says
But I would argue the jurists, with the exception of Rhenquist, that Nixon appointed were all quite moderate. I meant to say that Meese and Bork personified the elevation of the Federalist Society from the obscurity of law school campuses into the halls of power. The Federalist Society was founded in the late 70s after Nixon left office, and did not find a political patron until Reagan became President. But you are right to conclude that it existed in part, as a reaction against the impeachment proceedings and the Watergate reforms.
mr-lynne says
…here.
hoyapaul says
I agree that she is a good, solid pick. The criticism of her is, in my opinion, quite off the mark.
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p>First, both the New York Times and Washington Post note that her lack of time as a judge may be an issue in the hearings. Frankly, I’m glad that Obama picked someone that does not just have judicial experience, and in fact has substantial political experience (even beyond her time as Dean of Harvard Law, which certainly requires ample political skills). With O’Connor and Rehnquist no longer on the Court, the number of members with any political experience in the other branches at all has fallen precipitously. The fact that so many take for granted that Justices must have previously been judges is troubling — a Court focused mainly on the judiciary by virtue of its members’ experience is one that will tend to be more disconnected from how politics actually works. Given the wide consequences of Court decisions on the rest of the political system, this disconnect is problematic.
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p>Second, most of the criticism from the left isn’t particularly convincing. For one, it’s mainly focused on her views of executive power, which (1) I don’t think are accurately portrayed and (2) in any case, are a sliver of the Court’s overall docket. The suggestion that progressives will just blindly follow Obama on this aren’t really fair either, since her career choices (assistant to Larry Tribe in law school; clerked for Abner Mikva and Thurgood Marshall; worked in Democratic Administrations) strongly point to her left-leaning views.
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p>Finally, it should be noted that for all the liberal talk of Stevens being the “leader of the Left on the Court” and so forth, he wasn’t uniformly liberal. Perhaps the most prominent example is Texas v. Johnson, holding that flag-burning was protected speech under the First Amendment. Stevens dissented in that landmark case, against liberal lions Brennan and Marshall. This suggests that at least on some issues, Kagan potentially may move the court to the left.
doubleman says
What about the criticism that she has not written or spoken about the major constitutional issues of the last two decades? That’s a bigger problem than her limited writing on executive power.
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p>What does she believe? I guess we just have to take Obama’s word for it. But frankly, given Obama’s recent decisions on things like not using civil courts for suspected terrorists or putting a hit order out for a an American citizen suspected of terrorism, his word means a lot less to me these days than it would have during the campaign.
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p>Yes, she clerked for liberals, but she also clerked for some of the most prestigious judges in the country. The clerk-hiring process is much more about impeccable academic credentials than ideological fit. (Same is true for Larry Tribe) And working in Clinton’s and Obama’s DOJ don’t necessarily point to left-leaning views AT ALL. If anything, they would point to centrist views.
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p>And your point about Stevens is right, he was not as big a liberal lion as some suggest. But why replace him with a seemingly much more moderate person instead of someone at least in line with him ideologically to not shift the court to the right?
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p>Her time at Harvard is supposed to be one of the better arguments for her nomination. The hiring record under her leadership is far from praiseworthy, though – 23 of 29 were men and 28 of 29 were white.
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p>Obama has suggested that he wants a justice who understands the impact of law on people’s lives. If that is true, then Kagan is probably the worst pick of the short list. She has only been an academic and a high-level government lawyer her entire career. That means she’s been completely detached from the impact of the law on people’s lives.
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p>I don’t think this is a good pick because what we don’t know is so great. I hope we don’t get our version of a Souter, but maybe that is what Obama actually wants.
david says
That is not universally true. Many Justices have very specific hiring patterns that are repeated year after year. Scalia, for example, routinely hires three very conservative clerk and one moderate. Thomas always hires righties.
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p>The fact that Thurgood Marshall hired her of course does not say much about where she stands now, some 25 years later. But it does tell us quite a lot about where she stood at the time.
hoyapaul says
the lack of a strong liberal paper trail on major constitutional issues is and probably should be the biggest concern with Kagan from the perspective of liberals. I’m also not denying that there were other picks that would be more satisfying to progressives.
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p>Still, the weight of the evidence is that she’s a liberal, and I really haven’t seen anything solid to contradict that. As David notes, Justices’ hiring of clerks is not “much more” about academic credentials than ideological fit. Indeed, most, though not all, clerks resemble the ideological disposition of their Justice. And I found this comment somewhat odd:
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p>Clinton and Obama were, of course, the only two Democratic presidents during Kagan’s working career. So it’s not as if she had a choice between a liberal President and a centrist President and she only worked for the latter. If she loved working for the Executive Branch so strongly, she could have worked for Reagan or either of the Bushes. But she didn’t — she stuck with the Democrats. At the very least, that should point to the fact that her views are likely left-of-center.
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p>Also, while it is certainly fine for liberals to criticize her statements on executive power, her positioning is not surprising given that she worked in the executive branch. Indeed, Harold Koh, who many on the left saw as a dream candidate for the Supreme Court, has fully defended the Administration’s war strategies (including the use of drones) as a member of the Obama Administration.
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p>Finally, your Harvard hiring point is interesting, though I would guess that hiring decisions were not hers alone and larger hiring committees were also involved (though I don’t know how the hiring worked).
doubleman says
I think the weight of evidence indicates that she is a Democrat and left-of-center, but nothing indicates she’s a strong liberal. You say that you have not seen anything to contradict that she is a liberal, but have you seen anything to actually show she is a liberal, other than assumptions and the promises of her friends?
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p>More importantly, is being just left-of-center really enough? Especially today as the center has shifted to the right (with the help of 8 years of the Clinton presidency). As the political debate and the Supreme Court shifted rightward, Justice Stevens looked more and more like a strong liberal. Absolutely nothing indicates that Kagan is at the same point on the spectrum as Stevens. I think she automatically tilts the court slightly to the right.
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p>I would have loved to see a justice that was much farther to the left, someone like Pamela Karlan, but I knew that was unlikely. Then I hoped for someone a bit more moderate, but clearly a liberal, such as Judge Wood or Leah Sears Ward.
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p>I think Kagan is a bad choice just by virtue of being unable to really show that she is a good choice. Of course, we don’t know how good a justice will be until he or she is on the court for a while. With Kagan, though, we have almost no indication of what kind of justice she will be. That’s not an encouraging prospect for me.
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p>Also – Kagan did a weak job on the brief and the oral argument for Citizens United.
jconway says
Completely agree with your points that this criticism regarding prior judicial experience is somewhat absurd, especially considering that the current courts composition is a historical anomaly. Rhenquist was an SG and not a judge, Taft was a former president, Earl Warren was a governor, Hugo Black a Senator, Holmes and Hughes were not on the bench either. It was only recently that the circuit courts became the stepping stone. Historically the appointments were even more blatantly political than this one, and typically the Senate differed to the party in power. For the conservatives to attack her on this lack of experience would negate many of their own judicial hero’s elevation to the court.
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p>Also Stevens occupies the left of the court now, but was essentially a judicial moderate on the Berger court voting with Powell and Stewart most of the time. It is just that the Rhenquist court moved so far to the right that he occupied a center that was now on the leftward side. As much as I respect Breyer and Ginsberg it is also important to note that on questions of law and order, particularly the death penalty, they are far to the right of the Warren Court and even the Berger court. Stevens is also idiosyncratic on a few issues, he moved to the left on gay rights and maintains he made the correct call in flag burning mostly because he was a WWII veteran. He also moved to the left on religious cases moving from the Stewart-Powell-O’Connor case by case kind of analysis that viewed the historical structure and really examined whether its purpose was religious to a more ardent secularist position that religion has a very limited place in the public sphere.
tedf says
Holmes was Chief Justice of the Supreme Judicial Court before being appointed to the Supreme Court. Or are you just pointing out that he was not on one of the Courts of Appeals?
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p>TedF
cos says
I came across this piece in Salon this morning: “The liberal case against Kagan is overstated –
President Obama’s Supreme Court pick is mainly guilty of muting her progressive ideals in the service of ambition.”
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joeltpatterson says
“After all, the thinking on the right wing must go, if Greenwald hates her, how bad can she really be?”
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p>Please. Every SCOTUS confirmation hearing is a chance for the GOP to frustrate the Democrats and generate lots of heat and noise. Unfortunately, Kagan’s minimal ties to Goldman Sachs will be the chance for Republicans to paint Democrats as paid off by the Giant Vampire Squid… of course, Democrats will be trying to explain how a $10,000 payment from Goldman Sachs is minimal when 90% of the people watching America could solve a lot of their financial problems with $10,000.
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p>http://www.cbsnews.com/8301-50…
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p>Look, outside the political dimension, Kagan’s fine. But we are never outside the political dimension. It’s too bad Obama couldn’t find another Sotomayor, someone with more of the common touch, and untouched by Goldman Sachs.
joeltpatterson says
“90% of the people watching in America”
stomv says
Ten large solves small scale problems remarkably well — short on the rent, not quite enough for groceries, struggling to make the co-pay on drugs this month.
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p>However, ten large doesn’t come close to solving larger problems at all — home is financially under water, don’t have enough saved to retire, parents don’t have enough saved to retire, uninsured and quite unlucky.
joeltpatterson says
that most of the people in America would feel a lot more relieved if they could some little job for Goldman for $10K.
petr says
You just have to be one of the most respected lawyers in the country. That’s all there is to it..
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p>In fact, if you become one of the most respected lawyers in the country… I bet EVERYONE will want to hear your opinion on a lot of things… you might even get to work with a President (or two).
david says
Kagan will in the long run be a better Justice than Sotomayor. She’s younger, healthier, and (from all accounts) a better politician. Sotomayor will be like Ginsburg – a reliable vote and a solid craftsman, but not someone who has really changed the Court. Kagan could go way beyond that.
jconway says
I think Kagan will be a more reliably liberal O’Connor, at least in her ability to sway colleagues to her side and that will be an incredible asset. I believe that is what won the day over Wood in Obama’s equation, because while Wood has convinced Posner and even Easterbrook on extensive occasions, she is still considered a more dogmatic liberal and moved them only on cases where those libertarian conservatives might have common interest. On cases where Wood favored more regulation in the economic sphere she usually stood alone. I think Obama was really thinking about the consequences of Citizens United and how essential it is to have a justice that shares his philosophy regarding government intervention as well as his pragmatic touch to reach out to the other side and pull them over.
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p>Sotomayor was the perfect replacement for Souter and she will quietly vote the liberal side in most cases but she will not have a great impact on her colleagues the same way Kagan likely will. I think she will occupy the same ideological position as Stevens, and maybe possibly to his left, while also moving the court into her conception of the center the same way O’Connor did.
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p>I guess this means Wood is out of contention for the SCOTUS since the next vacancy will not likely occur this term and she will be too old when the next vacancy comes up. Garland will also be out of contention. Perhaps Karlan moves to the forefront as he might have the political capital to appoint a lesbian, and he could then say he appointed the most women to the bench. I also find it satisfying that in a Protestant country the court is full of Catholics and Jews đŸ™‚
hoyapaul says
that Kagan has the potential to be a consensus-builder on the Court, which no doubt played a big role in Obama’s decision.
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p>As far as the next vacancy goes — if Obama gets another shot in a second term (or possibly as early as next year), I think Garland is still viable. In fact, because he was probably the most “confirm-able” of the front-runners, Obama may be keeping him in reserve for when Democrats no longer have a substantial majority in the Senate.
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p>I’m also interested to see who the next Solicitor General will be. Neal Katyal, perhaps?
stomv says
For a Roberts-Alito duel within the next year.
ryepower12 says
For one thing, I’m glad we’re finally picking someone with a different background (ie not a judge). However, she’s certainly not the ‘uber-liberal’ who IMO we need to help shape the arguments in the favor of the people again.
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p>Also, I’m really, really, really bothered by her past connections with Goldman Sachs. I don’t care that it was only $10,000s she was paid by them and not hundreds of thousands or millions. It was for very little work and showed she was more than willing to do the bidding of the corporate world. Specifically, I’d like to see someone on the court who finally realizes that a Corporation is not an individual or citizen and is not worthy of all the same constitutional rights individuals get in this country.
christopher says
…with working for/in the corporate world. After all, our Governor has that background too. As long as she did not do or condone anything illegal/unethical herself that experience should not disqualify her. As a general comment I fear that many progressives are becoming as obnoxiously purist as the conservatives that forced the withdrawal of Harriet Myers, who probably would have been a conservative vote on balance.
ryepower12 says
While I think your bar (‘as long as she didn’t break the law’) is ridiculously low, I don’t really have a problem with Kagan herself. I do not oppose her confirmation, I just disagreed with Obama’s nomination. If I were a Senator voting for confirmation, her work for Goldman Sachs wouldn’t be a make-it-or-break it issue for me, but I do think what we choose to do professionally does reflect on our values and therefore think the Senate should at least press her on her views of corporations in America and whether or not have or should have the same constitutional protections as human beings.
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p>Additionally, I thought your quote below also ‘missed’ the point.
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p>You blame Harriet Myer’s defeat on “purists?” That’s… well… wrong. She lost because the only “supreme” qualifications in her background was her “supreme” lack of qualifications. Conservatives, by and large, weren’t worried that she wasn’t conservative enough… they recognized the fact that her nomination was purely a joke. Given all the mounting charges of nepotism in the Bush administration at the time, ie placing a person with a background in horse racing as the head of FEMA, conservatives had no appetite to defend the Bush administration’s choice to give another longtime friend a job they were grossly unqualified for.
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p>My problems with Kagan have nothing to do with her qualifications. She’s eminently qualified. My ‘problem’ with her is that I think there are better choices for the people of this country, but that is not a ‘problem’ insofar as I think the Senate should refuse to confirm her. Of course they should confirm her. This is more a knock on Obama and his judgment than Kagan and her constitutional views.
joeltpatterson says
might respect a woman’s right to choose, and conservatives understand all too well that once a person is on the SCOTUS they can vote any way they want. She expressed a belief in the right to privacy to Arlen Specter, and that got her canned.
http://en.wikipedia.org/wiki/H…
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p>I now wish Miers had been confirmed. Crony or not, she would not have been worse than Alito, and might not have decided Ledbetter v. Goodyear the way Alito did.
petr says
… do you think?
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p>If, arguendo, you’re supposition is correct that the arguments have not been shaped in the favor of the people… or, put another way, a particular ideological hegemony has held sway over the legal and political imagination, lo these many years… How would one go about recognizing an ‘uber-liberal’? What would you look for? What are the markers? Stridency into the wind (“blow winds, and crack your cheeks! Rage! Blow! You cataracts and hurricanoes…”) ?? Quixotic fealty in the face of all opposition? Lyndon Johnson in drag?
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p>The last couple of handfuls of democratic candidates for POTUS, successful and unsuccessful, have been remarkably similar people. Indeed, since Lyndon Johnson, and with the marked exception of Bill Clintons (private) recklessness, most candidates have been, uniformly, people who are personallly very liberal and professionally very moderate, even, I daresay, conservative in their own self-restraint and marked lack of aggression. There is, in fact, precious little difference between Jimmy Carter, Walter Mondale, Michael Dukakis, Bill Bradley, Al Gore, John Kerry, Joe Biden and Barack Obama. They are very nearly the same person.
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p>The reason this is so, quite frankly, is because significant parts of the other side have displayed a marked bloodthirst. It is not without cause that victims of assassination in the 60’s (JFK, Medgar Evars, MLK, RFK) and state sponsored violence ( Kent State, ’68 convention) were on the left… nor without hysteria as, into the 70’s, people were becoming assassins for the glory (George Wallaces’ assassin wanted, simply, to be famous…) and on towards the crazy (Lennon, Reagan…). Nor did the archetypical ‘uber-liberal’ Lyndon Johnson at all enjoy his (early) retirement. Nothing has really changed with Newt Gingrich priding himself on being a congressional ‘bomb-thrower’ and Rush, Glenn Beck, Ann Coulter and O’Reilly, probably themselves to chicken-shit to pull an actual trigger under any circumstance, still altogether too too willing to engage in indiscriminate character assassination.
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p>Since those times, an entirely reflexive, and quite understandable, meekness has crept into Democratic politics. To be sure, you’d answer with an equal attempt at equanimity if you felt your debate opponent might just pull out a gun. But, sub rosa, with the meekness lies some degree of technocratic ledgerdemaine, alongside a kind of paternalism that recognizes that the nasties will, from time to time, run amok and trash the place… And, really, sometimes the only thing to do is to know when to keep your head down and when the chance to clean it up, and fast, presents itself. Despite the apparent injury to our pride and sense of empowerment, it’s actually a rather sane and, I daresay, emotionally healthy response to what is, essentially, the cultural psychosis on the other side… The alternative is an eye for an eye and an ever devolving cycle of violence and spite: lose-lose for all concerned. To be equally frank, any liberal who is willing to shed this meekness and move aggressively stands a good chance of being the victim of assassination. Most liberals, of any degree of assertiveness, already face calumny, character assassination and disdain on a daily basis. And really, do you consider that the other sides use of vicious language is at all very far removed from a willingness to enact vicious deeds? They’ve already shown the most casual relationship with the truth, and an even lesser degree of fealty towards civility…
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p>So… How would you recognize an ‘uber-liberal’? In the environment that prevails somebody who might be tempted to ‘uber-liberal-ism’ would, I think, keep their heads down and play the long game. They would work the system by plumbing it’s depths. They would lose often, and often spectacularly, without reward or recognition. They would be forced to compromise and often even capitulate. They would be required to be satisfied with small gains. They might, even, make common cause with the other side, if only to mitigate the worst impulses of the other side, for the good of all. It’s not a very commendable system, in fact, it’s pretty f—ing sick, but if you can’t magically turn on the ‘evolve’ switch for the troglodytes on the other side, whattya gonna do?
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p>I do not say that Elena Kagan is an ‘uber-liberal’… that remains to be seen… only that, in our world, such as it is, an ‘uber-liberal’ might look like her…
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tedf says
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p>David, I think I beat you by several months, back when there was a scare about Justice Ginsburg’s health! On the other hand, my post said she was my pick, while yours said she would be Obama’s pick, so maybe you can claim first in time after all!
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p>TedF