I haven’t had enough time to dig into soon-to-be-Justice Kagan’s record in nearly the depth that I would like, and I’m not expecting to have all that much time to provide a fitting analysis. But based on what I know to this point, Daniel Larison’s take is right on the money:
Obviously, Kagan has enough votes to be confirmed regardless of what Republicans do, but it is a timely reminder how unimportant constitutional limits are to so many of the people who cannot cease talking about freedom here and abroad and how much many of them value a virtually unchecked executive. It appears that Obama has made a terrible choice, which is just one more in a long list of egregious decisions on civil liberties and the expansion/preservation of executive power. He should be excoriated for that, but unfortunately his opposition seems to have no interest in doing this. In an instance when Republicans’ reflexive, hysterical resistance to everything Obama says or does might actually serve the best interests of the Court and the country, they become indifferent or enthusiastic in response to one of his decisions. It would be a pleasant surprise if all the people who have been raging against the oppression of the health care bill could muster one-tenth of the intensity to challenge a nomination that could do significantly more permanent damage to constitutional liberty in the future than bad, unaffordable social legislation.
Indeed. There’s more at the link, and I fully agree with everything there. When Kagan is confirmed, it will be but one more step in the long and unabated pattern of Congressional acquiescence to the Executive, and abdication of its own institutional responsibilities that I identified a while back. It would certainly be helpful if they realized at some point that their interests as Congress-lizards are not the same as the interests of their respective parties, and are definitely not the same as the interests of the Executive Branch. We do not live in a parliamentary system, and Congress is supposed to be a coequal branch. Unfortunately, Congress seems to think otherwise.
And while I’m here, David Bernstein makes an obvious, but important point about the Harvard-Yale monopoly on our national leadership.
UPDATE: Eric Turkewitz makes a far more easily overlooked, but at least equally important, point as Bernstein, noting that Kagan appears to have no record whatsoever of representing individuals in private practice, “in the trenches,” so to speak. The lack of such a record is of a piece with the rest of the Court.