As both sides descend on the nominee, Eric Alterman on why she makes sense for Obama's politics—and what's wrong with her critics who want to know about her sexuality. Plus, read our full coverage of Elena Kagan
The Elena Kagan nomination is American politics on autopilot in a world in which “liberal” has come to mean “not crazy,” but not much more. If you think I exaggerate, take a look at the reactions of Michael Steele and Rush Limbaugh. The substance of their complaint, when one examines it carefully, is that Kagan (together with Thurgood Marshall) appears to oppose slavery. And yet one could make a credible argument—stronger in Limbaugh’s case than in Steele’s—that one of these two men is the current leader of the Republican Party. In the meantime, everyone else is playing their prescribed part, (which is one reason I predicted Obama would pick Kagan on this site just before Justice Stevens announced his retirement).
Obama is a pol who learned early that when “sometimes you can’t get the whole hog, so you take the ham sandwich.”
“Why do the conservatives always get the conservatives, but we don’t get to get the liberals?” asks Senator Tom Harkin. “What the hell is that all about?” Well Tom, it’s about a lot of things. In the first place, liberals do not play well with their own side. Sometimes they find themselves in agreement with conservative arguments and say so aloud. On other occasions, they judge people and their merits regardless of whether a nominee happens to be on their side. And often times, they find themselves so committed to a particular issue, whether it be abortion, executive power, or diversity issues, that they can’t see the bigger picture.
But time and again, as president, Obama has confirmed the wisdom of one of his early Chicago mentors, Denny Jacobs, who explains to his biographer David Remnick, Obama is a pol who learned early that when “sometimes you can’t get the whole hog, so you take the ham sandwich.”
Elena Kagan, the Jewish daughter of Upper West Side liberal intellectuals and activists, is in every way, a metaphorical ham sandwich. Not even her close friends are certain of political views. Self-appointed sex police are demanding to know whether she prefers to snuggle up to men or women (demonstrating that one era’s Joe McCarthy is another’s "gayCatholicTory…”). There’s no denying that her paper trail is paper thin, which makes her all the easier to confirm. So too the fact that she has demonstrated nothing in her career so much as political skill regardless of context. If any nominee can be trusted to give nothing away to her potential enemies in the way of substance—in other words, to make the same mistake that Robert Bork made in 1987, which sunk his nomination—it is this woman, who, whether the issue is gay recruitment at Harvard or late-term abortions, can be expected to take the position designed to upset the fewest number of people in whatever circle she deems most relevant.
Tom Harkin is right to complain that while conservatives demand whole hogs in their court picks, liberals settle for ham sandwiches. But the fact is, picking a strong liberal this time around—and this liberal’s choice would have been Elizabeth Warren—would not likely have changed this. Obama might have picked a principled fight with his opposition as means of taking the fight to the midterms, but he would have stalled the rest of his agenda and probably lost the fight. This Republican Party, whether out of fear of Tea Party primary runs or principled commitment to ideological extremism, has demonstrated no shame in putting the country’s business on hold in defense of its minority positions. A strong liberal nominee in this environment might have galvanized the left and right for the midterms—just as Bork’s did in 1986—but it could hardly have been less out of character for this president.
What is really going on here—in extremis—is representative government. We (liberals, moderates, and other “non-crazies”) supported this president because we liked and admired him and trusted his judgment. Given Kagan’s lack of a legal track record, what Obama and his allies are really saying is, “We know her. We like her. Trust us. We know Elena Kagan is no John Paul Stevens, much less a Larry Tribe. She’s not even a Diane Wood. But this is the pick that can move the court furthest back toward the center while doing the least amount of damage to all of the priorities I was elected to carry out here. Yeah, I know, those aren’t working so terrifically either. But they’re working. Politics ain’t pretty. In the meantime, go ahead and bitch." That actually helps with the folks who can’t make up their mind. (Are you listening Lindsey? Glenn Greenwald hates this woman…) This, alas, is liberalism, circa 2010. And let’s be honest, it’s worked for Obama so far. In the meantime, would you like a little more mustard with that…
Eric Alterman is a professor of English and journalism at Brooklyn College and a professor of journalism at CUNY Graduate School of Journalism. He is the author, most recently, of Why We're Liberals: A Handbook for Restoring America's Important Ideals.