Why'd he pick Elena Kagan for the next Justice?

The Republicans' quasi-intellectual smiley face, David Brooks, wrote a column about this. He lamented how this era's hyperpartisanship means you can't get a high profile public gig unless you're a cipher like Kagan (David Souter being another example of this).

My take:

Ideologues assume that anyone who isn't an ideologue has no principles--apart from "taking care of #1" of course. I recall one conservative commentator said that about Sandra Day O'Connor.

But what if Ms. Kagan's principle is being a good judge, rather than using the black robe to promote an ideological agenda? What if she thinks that thoughtful, fair-minded judging does far more to aid society than judicial activism--right or left?

Now President Obama does have positions, and while he's pragmatic, he's also most assuredly a Democrat--probably in about the middle of the Democrat spectrum. So why would he nominate someone like Kagan, who has put herself out there far less than he has? She's not like him in that sense.

Easy. Ms. Kagan, as a Democrat, will be in the minority on the Supreme Court for decades, in all likelihood. The Court's four relative liberals are far older and frailer than the Court's four hard-line conservatives. So even if our president is able to put several more justices on the bench, he'll still be replacing Democrats.

If President Obama put an assertive, opinionated person on the Court who exactly mirrored his own opinions, how would Roberts, Alito, Scalia and Thomas react? They'd close ranks. Harden. And such a justice would probably push Kennedy into that camp even more than he is now.

The best the President can hope for is someone who's a really, really skilled dealmaker--someone who can turn what might be a 5-4 vote into a 4-5 vote, and sometimes even persuade the arch conservatives that her point of view is really the right position.

That's Kagan, folks. She's vastly more likely to aid Democratic causes than a Movement orator on the court.

Unless you think "success" would mean decades of dissenting opinions, beautifully written, persuasive to any Democrat--and utterly futile.

I'll take a pragmatic wheeler-dealer with immense powers of persuasion across the aisle vs. someone who says what I think but can't make law happen, any day of the week.

So should you.

Ms. Kagan will also challenge Republicans to come up with a valid reason to vote against her.

No experience on the bench?

Well, first of all that's their fault. Clinton nominated her to a U.S. Court of Appeals slot in June of 1999. The Republican Congress refused to even hold hearings on her nomination, much less schedule one of those up or down votes they claim to adore. It didn't concern them in the slightest that the Court of Appeals was shy one justice.

Then, six months later, Bush II nominated John G. Roberts to that position, and Congress promptly confirmed him. So Kagan's nomination now is poetic justice at the least.

Besides, other well-known Supreme Court justices with no prior experience on the bench include: John Marshall, Earl Warren, William Rehnquist, Felix Frankfurter, Louis Brandeis--and 36 other SCOTUS justices.

The Constitution says exactly nothing about what qualifies someone for SCOTUS except that a president has to nominate them and then they have to get 51 Senate votes. Could be the Dalai Lama or Katherine Heigl (I wonder if President Obama considered either of them?)

Then there's the matter of Ms. Kagan being anti-military. This is equally bogus. It is true that she opposes discrimination against homosexuals in the military--or anywhere else. But she has supported the military on other regards, such as--and this is a biggie--supporting the application of battlefield law to places other than traditional battlefields. At her Solicitor General confirmation hearing she said "someone suspected of helping finance Al Qaeda should be subject to battlefield law—indefinite detention without a trial—even if he were captured in a place like the Philippines rather than a physical battle zone."

There have been whispers that she must be homosexual, since she's 50 and unmarried--and that practically the only political-type opinion she's expressed publicly concerns homosexual rights.

I say, could be, but so what? I'm much more concerned about having four doctrinaire Catholics on SCOTUS than one homosexual. Like few people my age, but most people under 30 (regardless of their political affiliation) it's just not important to me. My main opinion about homosexuals is that they're less likely to contribute to overpopulation. I won't go to movies that feature a lot of guy-on-guy liplocking, nor attend Gay Pride parades that feature same, but apart from that I'll stay out of their bedrooms if they'll stay out of mine.

Now if Ms. Kagan is confirmed, joins the Court, and thereafter starts showing up with the "Dykes on Bikes" contingent at Pride Parades in full biker regalia...well, that would be interesting. But it's not going to happen even if she is, because even getting a lifetime appointment to the Court isn't going to change her need to be circumspect if she wants to achieve anything, given her side's probably enduring minority status on the Court.

Here's my comment that I posted in response to Mr. Brooks' editorial:

"Give thy thoughts no tongue,

Nor any unproportion’d thought his act.

...Beware of entrance to a quarrel; but, being in,

Bear’t that the opposed may beware of thee.

Give every man thine ear, but few thy voice:

Take each man’s censure, but reserve thy judgment."

Sounds like Mr. Brooks takes issue with Shakespeare's advice on personal conduct [and don't tell me Shakespeare puts this advice in the mouth of a fool; that's a simplistic misreading of Polonius, so there.].

And in all this dismal tut-tutting by Mr. Brooks, not one word about how well President Obama knows her, nor any speculation on why he chose her, except for reasons that might be critical of the President's character.

But of a few things we can be sure: Senator Obama voted against confirming now-Justices Roberts and Alito--and from a Democrat's point of view, the Senator was prescient, seeing through both candidates' demurrals and obfuscations.

I think we can be pretty darn sure that aside from wanting to nominate a woman and a Democrat, and someone likely to be confirmed without going to the mat--he really, really wants to bring in justices who can skillfully manouver some of these 5-4 decisions the other way.

That isn't going to come from putting, say, Al Sharpton in the chair. It will come from someone who knows the game inside and out and can persuade people not of her own persuasion.

I I'm guessing that Mr. Brooks' dourness stems primarily from seeing a nominee he fears can effectively advance Democratic viewpoints on the Court--a rainmaker, so to speak.

Sometimes a whisper is louder than a shout, and a rapier more effective than a sledgehammer.

Let's revisit this column in a year or so and see who's right.