Liberal activists intensify attacks on Kagan as court pick nears

Jon Ward Contributor
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Liberal legal scholars and experts stepped up their attacks Friday on Elena Kagan as a potential Supreme Court nominee, hoping to dissuade President Obama from selecting her in the last few days before an expected announcement early next week.

A group of four law professors Friday morning published a piece at Salon.com criticizing Kagan, Obama’s solicitor general, for hiring too few women and minorities when she was dean of Harvard law school.

Liberal attorney and blogger Glenn Greenwald — who has taken Kagan to task for her views on executive power and been the chief organizing force behind criticism of Kagan — promoted the column on his Twitter account and kept up a drumbeat against Kagan.

Greenwald told The Daily Caller by e-mail that he would remain opposed to Kagan if she is announced Monday as the nominee, but he thinks his best chance to derail her is prior to the announcement.

“I’ve devoted everything I can to making the case against Kagan before Obama chooses, precisely because I know that once he makes his selection, the overwhelming majority of progressives and Democrats will cheer for her even if they have no idea what she thinks or believes,” Greenwald said.

“Unless Kagan provides a clear statement of her views about the Constitution and judicial approach during the confirmation hearing — something that is unlikely in the extreme — I’ll vehemently oppose her nomination until the last vote is cast,” he said. “But the same won’t be true of most Democrats and progressives, for whom Obama’s choice will be a good one solely by virtue of the fact that it’s Obama’s choice.”

Prominent liberal legal scholar Erwin Chemerinsky made that very point this week in an interview.

“The reality is that Democrats, including liberals, will accept and push whomever Obama picks,” said Chemerinsky, founding dean of the University of California-Irvine law school. “Obviously, liberals hope that Obama will pick someone more from the left than the center. It can’t be that Republicans pick conservatives and Democrats pick only moderates.

Greenwald has argued that if Obama chooses Kagan that would move the Supreme Court to the right. This may actually help the White House if they want to be seen as nominating a moderate while still placing a liberal on the court, which most experts agree Kagan certainly is.

Even as Kagan came under fire for her hiring practices, she was praised elsewhere in the press Friday for her decision at Harvard to bar military recruiters from the school’s campus in protest of the military’s “don’t ask, don’t tell” policy.

The idea that Kagan will be the nominee has taken on something close to an air of inevitability.

But Greenwald said he thinks the president and his legal advisers remain “torn” between picking Kagan — the safest political choice, and Diane Wood, a federal appeals court judge on the seventh circuit who is held in high regard by liberals for her legal and intellectual acumen but also has a far more extensive record on the bench for Republicans to criticize.

Kagan, besides having good relationships with many conservatives in the legal community, has also never been a judge and has a very thin paper record.

“Kagan is clearly a very real possibility — probably the most likely — but I don’t get the sense at all that it’s done yet,” Greenwald said.

The White House and Justice Department defended Kagan from the charges that she has not hired enough women and minorities.

The White House distributed a memo arguing that Kagan made many job offers to women and minorities which were turned down.

The Justice Department released a tally of who Kagan has hired as solicitor general:

1 white man – assistant SG
3 women – 2 assistant SGs, 1 special assistant
1 asian man – special assistant
1 indian man – principal deputy SG

“The solicitor general’s hiring record in office reflects a strong commitment to hiring qualified candidates of all races and genders,” a Justice Department official said on condition they not be identified.

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