On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court. Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed." But these documents proved that Kagan was "a lot more liberal than people realize." According to Crawford (you might want to sit down as you continue reading, by the way):
These documents have her squarely within mainstream liberal thought. She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.
So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?
This, in a nutshell, highlights the challenge facing progressives in modern American politics.
As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning." Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."
In the end, judicial nominations are fights over meaning. Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking. Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own. That is unfortunate. He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”