Morning Migraine: It’s Elena Kagan for the Supremes

President Barack Obama, on a roll after his Attorney General floated the idea to the Sunday morning talkie tubes that the Miranda rule should be optional in the War on Terra, had his anonymous spokesperson let loose with the news late this evening that Elena Kagan would be his Supreme Court pick to replace retiring Justice John Paul Stevens.

Elena Kagan, a Clinton era leftover,former Dean of Harvard Law School, and current Solicitor General, would be the 3rd female on the Supreme Court at the same time, which presumably would signal the Beginning of the End Times for certain fundamentalists.  Kagan has never been a judge.

Like most things in the Obama administration which start out sounding wonderful, there has to be a catch:…

Her nomination is unlikely to cause a damaging fight in the Senate ahead of congressional mid-term elections in November or distract the Obama administration from other issues like jobs, financial regulation and climate change legislation.…

Has plenty of ties to Obama and his administration. In addition to being solicitor general, was hired by chief White House economics adviser Larry Summers to be dean of Harvard Law School. And while at the University of Chicago, Kagan tried to recruit Obama — then a part-time lecturer in constitutional law — to a full-time job in academia.

***  Seven Republicans voted for her confirmation: Coburn (OK), Collins (ME), Gregg (NH), Hatch (UT), Kyl (AZ), Lugar (IN), Snowe (ME). Newly minted Democratic Sen. Arlen Specter voted against her.

Won praise — from both liberals and conservatives — during her tenure as dean of Harvard Law. Hired some of the best law professors in the country, including Obama friend (and administration official) Cass Sunstein of the University of Chicago.

Larry Summers, Orin Hatch, and Cass Sunstein.  It’s like the Bermuda Triangle.

And Arlen Specter doesn’t like her, but remember, the Tea Party hates Arlen Specter.

One reason why she’s the nominee:…

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship-  three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review-a scholarly journal edited by Chicago’s own faculty-and a short essay in the school’s law review.

…. joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Kagan’s handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president’s power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations.

The names of her parents are no longer a deep mystery, it’s Gloria and Robert Kagan.

I found this on a another blog, so we’re not the only ones wondering-  is she or isn’t she?


According to news articles, Ms.(Elena) Kagan was born and raised in New York City on the Upper West Side of New York. Her father, Robert Kagan, was a founding partner in a real estate law firm located in Manhattan called Kagan & Lubic. Her mother, Gloria Kagan, was a schoolteacher at Hunter College. She has two brothers, Marc Kagan and Irving Kagan, who are associated with Hunter College. It is interesting to note that all over the blog world it is being reported that she is the cousin of Arch Neocons, Robert and Frederick Kagan. Their father, Donald Kagan, may very well be the brother of Elena’s father, Robert Kagan. So it is clearly possible he is her uncle or cousin. Donald Kagan was also a college professor at Hunter College and now teaches at Yale. However, to date, no one in the press has been brave enough to ask these leaders of the American Neocon movement if Elena Kagan is their niece and cousin. Elena has remained silent on the issue.

It is important to note that Donald Kagan was at one time a Democrat. In the sixties at Cornell University, he changed and became a Republican. It has often been reported that the reason he changed is that he got upset that Cornell University would consider having a black studies department. After that incident, Donald Kagan became one of the founding Fathers of the American Neocon Movement. It would seem that the press would want to know what Ms. Kagan’s family connections are to these members of a right wing fringe group but no one has asked. It is possible the reason why is that Robert Kagan, the son of Donald, writes for the Washington Post and is being protected by the media on this matter. The questions that need to be asked is; “What is President Obama thinking by appointing a woman to the United States Supreme Court who is kin to Arch Neocons?”, if these reports on the blogs are true. Further, if these internet statements are true, does this explain the positions Ms. Kagan is taking in her job as Solicitor General?

Robert Kagan is a co founder of PNAC, the Project for a New American Century, which was used as a neocon blueprint for Republicans to start a modern day political crusade by in the Middle East, and he’s now with the Carnegie Endowment for Int. Peace

PNAC openly advocates for total global military domination, and has a new gig, the Foreign Policy Initiative.  

In February, 2009 Frederick W. Kagan of the “American Enterprise Institute,” strongly urged President Obama to lead a bi-partisan escalation of the US war in Afghanistan [2]. On April 3, 2009 he participated in a forum titled “A New Way Forward in Afghanistan,” sponsored by the liberal think tank “Center for American Progress,” (CAP) also a supporter of the Afghanistan escalation, to launch their report titled “Sustainable Security in Afghanistan.” CAP’s founder and executive director is John Podesta.    And Podesta was Pres. Clinton’s chief of staff and headed the transition team for Barack Obama.

More on how  John Podesta’s CAP think tank targets liberals for “message discipline,” to try to turn anti war Democrats into pro escalation and more countries invaded followers is here.

Frederick Kagan’s wife, Kimberly Kagan, who runs the Institute for the Study of War,  is a big Tea Party supporter, who also admires the flat earth, carbon science climate denier, anti environmental, pro oil drilling neocon Congressperson from CA 04, Tom the Carpetbagger McClintock, whom she blogs about.  He also quotes her Institute for the Study of War on his blog.  She also likes to hang with Russo Marsh/Move America Forward’s Republican PR right wing propagandist Melanie Morgan.  (RMR/MAF = swiftboating, astroturf, and Tea Party)…

Kelly B. Vlahos 9/29/2010:

The Kagans’ own success as courtier-scholars in the Imperial City relies on building and maintaining the successful Surge narrative. One year after “Patton” and three months after issuing “How to Surge the Taliban” for the New York Times with fellow neoconservative Max Boot, both Kimberly and Fred were injected into the new commander’s tight inner circle for the next Surge experiment in Afghanistan.

….. as if on cue, the same day the Washington Post published a leaked version of McChrystal’s final report, saying he needed more troops or else “mission failure” would ensue, the Kagans conveniently announced their own new and improved strategy for Afghanistan. The report, “A Comprehensive Strategy for Afghanistan: Afghanistan Force Requirements,” involves a recommendation for 40,000 to 45,000 additional American troops on the ground and a level of detail not seen since, well, Fred Kagan announced “Choosing Victory: A Plan for Success in Iraq,” otherwise known as the Surge blueprint, with Petraeus’ mentor, former Gen. Jack Keane, at the American Enterprise Institute in Dec. 2006.

Hardly marginalized, the Kagans have set about to bring the administration to heel on the issue of Afghanistan, and they are well placed in a co-dependent relationship forged with Petraeus, Odierno, and McChrystal back in Iraq. The Kagans are able to pursue their advocacy of the Long War, while the generals craftily use the media-savvy duo as cover to force Obama to wage the war their way.

Vlahos points out that the Kagans make their living not as scholars for war, but as cheerleaders.

Go and look at Kimberly Kagan’s Institute for the Study of War site, and now you see lots of articles on “PAKISTAN.”

Because that is the next country that they would like to expand the war into.  That’s where we’re headed, folks.  

If Elena Kagan, whose maternal parent taught at Hunter College, is not related to the Donald Kagan, who also taught at Hunter College, the family War Dynasty patriarch of PNAC’s Robert Kagan and the American Enterprise Institute’s Frederick Kagan, then one would think that maybe a denial would have been issued by now.  Instead, it’s been radio silence. crickets.  There was no online info with her family’s names before recently.  

Is she, or isn’t she ?  

Because if she is, it is very relevant to the future of our country, as Kagan gave indications she favors the Unitary Executive during her previous confirmation hearing.  And we still have this Guantanamo problem ongoing, where the country grapples with the negative publicity as the tortured prisoners, petition for fair trials or release.  Last friday the military booted 4 journalists out of a military tribunal trial for Omar Khadr because one mentioned the name of a torturer, “interrogator #1”  – yet the name of Joshua Claus, who was convicted of abusing prisoners years ago, and served a few months for it,  was widely published years previously, including the NY Times.  http://emptywheel.firedoglake….       http://attackerman.firedoglake…   http://washingtonindependent.c…

Senator Lindsey Graham:  “Do you believe we are at war?”

Elena Kagan: “Yes.”

How dare we ask.  


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  1. …. that the Obama administration is following the Tea Party’s war strategy in the mid east, and that this woman just happens to share the same last name as the PNAC neocons.  

    And now I’ve missed sleep because of this stupid late Sunday news dump, and I have to get up early in a few hours.

    check out Podesto’s CAP think tank relationship with this Kagan crowd, guaranteed to make you nauseous.

    Message discipline my a$$.  


  2. what she is NOT.

    We needed an unabashed ideological liberal on the court to maintain its balance.  Many people who didn’t want to vote for Obama, correctly perceiving him as a centrist triangulator, voted for him on the basis of the expectation he would appoint unabashed liberals to the Supreme Court.

    It is for this reason I cannot understate the magnitude of the importance of getting a bona fide liberal with the credentials to match, and thus the magnitude of these kinds of appointments as a betrayal.  If Kagan is what she is described — even if she is similar to Sandra Day O’Connor or Sotomayor, she will still shift the court to the right.

    And, whether Kagan is a centrist or not, the far right will paint her as a leftie socialist communist anyway.

    Meanwhile, the fool brigade will be out in full force.  She did this liberal thing or has that liberal position, they will say, so stop whining.  What will be forgotten is that this is a nominee to replace STEVENS.  We needed better, and with the ideological balance of the court at issue, we cannot afford a crypto conservative.  We cannot afford NOT to know her views or be able to evaluate a nominee completely based on their RECORD.

    Progressives in Congress should immediately call on President Obama to make another choice for this nominee.

  3. … an apologia at DK – what I found instructive was a response from JesseCW that pretty much answers many of the talking points from the DLC/OFA’ers that we’ll likely see in the coming days (note that the blockquoted material within the comment is taken from the diary):

    This has given a lot of us pause, as we are unhappy with her views on what I like to call the “Bush’s 3 Ts” – torture, terror and tyranny….I think we are all getting bent out of shape over nothing, and are missing the big picture positive Kagan brings.

    See, I thought you would support this argument.  You didn’t.  You never got around to providing any support for case that we’re wrong to worry about her views on torture, terror, and tyranny.

    …more than a little unhappy that Obama has only pursued ending Don’t Ask Don’t Tell when it comes to allegations of Bush Admin wrongdoing…

    DADT was a Clinton Administration wrongdoing.  

    …I think we are misreading Kagan every bit as much as Bush and Sunnunu misread Souter- and in this case the result will be the same- we will end up with a justice much more liberal and progressive than we expected…

    Actually, the inverse is just as possible – that we’ll wind up with a Justice much more conservative and authoritarian than we expected.  That, after all, would be the “Reverse Souter”.

    …First, let me point out that this should make the teabaggers shudder…

    Another Rhenquist would make them shudder.  Anything short of Michelle Bachman will make them shudder.  They’re bat shit crazy.

    She’s going to back Obama’s ability to control the Executive Branch– the FCC, health care regulators, to name two examples of why Obama may want her on the court. Healthcare mandate Unconstitutional? Unlikely with Kagan on the court (if it would ever get that far- which it wouldn’t). More likely, Obama’s FCC protecting net neutrality.

    She doesn’t get to set Precedents that only benefit President Obama.  We will have a Republican President again – and the rulings she makes under President Obama will still apply.

    There are two areas we know firmly where Kagan stands: she is firmly pro-choice, and firmly in the camp for gay rights (she refused to allow military recruiters on campus at Harvard due to anti-gay discrimination!)

    Only after years of Student Activism drove her to it, and only after several other Ivy’s had done the same.  

    In any case – a belief that the Constitution protects a womans freedom of reproductive choice and a belief that the GLBTQI community is comprised of human beings deserving of equal treatment under the law is a baseline requirement.  While I agree that these are two very basic qualifications that Kagan does fulfill, this is sort of like her unquestioned ability to read and write.  While necessary, it’s something we should be able to take for granted.

    The most important question for the court in the next several years…..

    One of the most important questions.  Those “Torture, Tyranny, and Terror” issues you mentioned once and then ignored are equally important.  While it’s good to reject the notion that Corporations have the rights of people, it’s even more important to recognize that people have the rights of people.

    In this exchange, I can see that Kagan is an entirely effective replacement for Stevens. And may be able to accomplish something badly needed: bringing Kennedy over to the side of reason on these key corporate cases.

    How so?  She made no head-way here when arguing before him.  Why would she somehow accomplish this while on the court?

    Roberts and Alito’s greatest sins are not being anti-choice or even pro-torture.

    It is being pro-corporate …..

    You would really have a great case here if were replacing  either of them.  I mean that.  

    If Roberts passed away and President Obama nominated Elena Kagan to replace him, I would applaud the way he was moving the Court left with an Authoritarian justice who saw the role of the State like Roberts, but was at least better on social issues and might be a lot better on Corporate issues.

    We’re not replacing Roberts.

    We’re replacing a Justice who opposed torture, indefinite detention, and who rejected the “global battlefield” doctrine at its core…while also being far from a friend of Corporations and striking down “sodomy” laws and supporting a woman right to make her own choices about what to do with her body.

    All indications are that this is a move to the Right.

    I thought the comment was good enough to reprint in its entirety.

  4. Except this time the unqualified, inexperienced, meretricious hack gets confirmed.

  5. Kagan is PRO GAY RIGHTS.

    O Really?  Candygram?

    Kagan on Same Sex Marriage

    “There is no federal constitutional right to same sex marriage”

    So, one good question to ask, what would the 14th Amendment, the 1st Amendment (freedom of/from religion plus freedom of speech), the court precedent Loving V. Virginia, the 9th Amendment (non enumerated rights), and the 10th Amendment (reservation of rights to the people) mean to Elena Kagan?

    It is a misnomer to ask whether a right to “Same Sex Marriage” exists in the Constitution — a moronic question.  

    What is a more pertinent question is what is the constitutional framework for forbidding such a right.  By the 1st, 9th, 10th, and 14th Amendments, plus the Supreme Court Precedent Loving V. Virginia the U.S. Government has every obligation and precious little standing to deny the rights of people of either sex to get married, or to recognize such marriages and enforce them via Full Faith And Credit.

    When the Daily Kos diary posits Elena Kagan might be more “pro gay rights” than other possibilities, the diarist over there left out this detail.  Why?  It deserves an opportunity for Kagan to clarify, certainly, but saying she’s “pro gay rights” on account of her DADT position would appear to me to be cherry picking.

    Saying Kagan is “pro gay rights” and this is a reason to confirm her, in absence of explication of her actual position on all gay rights issues, is intellectually dishonest.

  6. Obama did this cause he knows that confirmation is likely.

    That’s the name of every game now: What do I have to do to get something, anything through Congress? He looks at the presidency strictly as a management job and the country as political entity to be managed. His pronouncements are hallow, salesmanship bullshit. He’s been accepted by the big boys now and is happy as a lark.

    I fear a 5-4 right leaning Supreme Court now for years.

    Obama had a chance to make it the other way, and screwed Americans royally by totally misrepresenting who he is and what he stands for. And that is nothing but a puppet of the rich and powerful.  

  7. I’m so sick of this utterly predictable fucker.

    • banger on May 11, 2010 at 04:09

    Senator Lindsey Graham:  “Do you believe we are at war?”

    Elena Kagan: “Yes.”

    So now war has become a matter of belief. It used to be that being at war was not a matter of belief.

    For those of us that are interested in reality. No we are not “at war”. We are fighting in a series of occupation and police actions. Congress has not declared a state of war and therefore, we are not at war. If we are at war it is illegal. But since there is no real law, or I should say, the law is whatever the aristocrats say it is, I don’t think the Supreme Court matters very much.

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