So, Elena Kagan will probably get on the Supreme Court soon. She would follow recent Obama nominee Sonia "Wise Latina" Sotomayor, who got on last year, in the midst of a ridiculous nomination process. Lots of people, especially on the left, are applauding these picks. Both are women, both are moderate, and both will make it through the nomination process - it'd be shocking if Kagan didn't get through. However, there's a big problem here. I know, you have to pick your battles, but...do people realize that moderates will not save the Supreme Court? Because justices are appointed for life, every nomination is a big deal...so if the court is drifting far to the right, it should be worth the battle to make sure it moves back to the center (something I suspect most Americans would actually want). Appointing moderates will not do that.
Sotomayor, by all accounts, was a moderate. Yes, she's a woman, and a Latina at that, who grew up without any silver spoons. Trust me, I'm down with all of that. But...she's a moderate when it comes to judicial practice. President Bush appointed two very right wing justices, Chief Justice John Roberts and Justice Samuel Alito, to the court in his reign...er...presidency, and Democrats kind of let them both on. Part of this is the problem of the nomination process in general. Roberts refused to answer any real questions that would indicate how he might vote on issues. Alito did the same. Sotomayor, Kagan, ditto. Look, just because the Democrats wisely challenged the Robert Bork nomination by President Reagan in the 80s doesn't mean the goal for leaders is to nominate people who then refuse to provide any information on how they might vote. Remember, Bork had real baggage. He was known to hold very problematic views on executive branch power and civil rights. Because of the backlash to Bork, it seems like nearly every Supreme Court nominee since then has clouded themselves in a shroud of secrecy. Which, of course, is dangerous as all hell. It is vital that Congress knows what kind of justice a nominee could be...if the court is supposed to be balanced, approving the nomination of very right-wing (or very left-wing) justices without considering where that takes the court is a huge problem. Of course, at least with Roberts, it should have been fairly obvious what kind of justice he was going to be, given his record. But, the Democrats didn't fight him or Alito (or the entire process) that much, and both got on.
At what are the consequences? Today's Supreme Court is one of the most conservative in memory. Shocker there. Angry about the rolling back of limits on corporate spending on elections earlier this year? That's a consequence of the right wing court. So, yeah, this is serious business. Which is why the nominations of Sotomayor and Kagan seem to be...problematic. The fact is, this court is going to stay pretty far on the right for a while...in other words, very unbalanced. You've got four very right-wing justices on right now - Roberts, Scalia, Thomas, and Alito. That's a real issue. So, to balance the court closer to the center, you need some pretty strong left-wing justices. President Obama has had a chance to appoint two of them so far. Instead of thinking about the balance of the court, he opted to play it safe and go with two relative moderates in Sotomayor and Kagan. Not bad choices in most situations. However, with a court leaning so heavily to the right, it was worth fighting Republicans to try and balance the court with more liberal justices. Of course, Obama opted to not fight (it's his signature move). The results will probably be dangerous for all of us for another 20-40 years.