On Kagan and Moving the Goalposts

I largely agree with Scott Lemieux on the overall wisdom of the Kagan pick. My one point of hesitation is that in a lot of ways Kagan seems like the left’s version of John Roberts. By this, I mean that because Kagan has little paper trail and is clearly qualified, she’s like Roberts in that she’s a perfect post-Bork nominee for getting through the Senate under the pretense that she is a reasonable moderate. I had a liberal friend in Boston who was a family friend of John Roberts who swore up and down that he wouldn’t be a radical conservative. We all know how well that worked out.  So maybe in Kagan we’ve managed to find someone who will dutifully say all the right things that please the Villagers of Washington while actually performing as a highly progressive judge.

Now I’ll allow this is quite possibly a stupid and risky way to get progressive justices onto the Court. For one thing, I think there’s probably an imbalance between how conservatives and liberals rely on this kind of subterfuge, so it’s possible that Kagan is every bit the boring establishment moderate that she seems to be. It would be much better for our peace of mind if it was inarguably possible for non-ciphers to make it past the Senate. But it’s not clear that that’s inarguable right now, and the reason is that the Village still thinks of unabashed liberalism as outside the bounds of acceptable philosophy for a President or Supreme Court justice. So it’s crucial that we need to  reset the goalposts too.

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