Kagan Open Phones: Temperament vs. Politics

Monday, May 10, 2010

Earlier on today's show, Dahlia Lithwick described how, in Elena Kagan, President Obama chose someone with a "judicial temperament," that it's "not in her nature to be a fighter, she's not a swing-for-the-fences liberal."  Patricia Williams, a professor of law at Columbia University who writes the Mad Law Professor column for The Nation magazine, joins us to take your calls.  

What do you make of this question of temperament vs. politics? What matters more? Judicial temperament or swinging-for-the-fences politically? Let us know!


Professor Patricia Williams

Comments [14]

Karen from NYC

AND I'm a Columbia Law grad who enjoys Williams' columns. The problem is that people who live by the rule often act by the sword (or psyche). You've got to look beyond the robe. There was an excellent profile of Kennedy in the New Yorker a couple of years ago -- people might want to check it out.

May. 10 2010 12:03 PM
Karen from NYC

I disagree with Professor Williams re Kennedy. He is in fact "a leaf in the wind," primarily because he does not act on principle; he's manipulable. Law professors don't like to consider these factors, because the law is supposed to be rational, based on ideas. It's implements, however, by people. I would not trust Kennedy as far as I could toss him. Kagan is another story entirely.

May. 10 2010 12:00 PM

One other thing - Glenn Greenwald was more relevant, I think, in the Bush era. His writing just sounds a little more reactionary in the Obama context.

May. 10 2010 11:59 AM
bernie from bklyn

while i appreciate and support this appointment, the issue of her temperment is valid and the previous guests point that she has more of a judicial temperment than some present members of the bench. BUT i think that is part of the reason she lost the argument in the Citizens United case that she argued before the court. i don't think i'm exaggerating when i say democracy as we know it is gone in this country. until this law is overturned i don't think i'm going to bother voting anymore. i don't think she passionately made the case for this fact that has not been analyzed and seen for what it really means by the press. democracy is over and i wish she made that case in a way that would've swayed Kennedy.

May. 10 2010 11:56 AM

the only temperament question I'm really concerned with is whether or not the person can learn and develop their opinions over time. From what I've been reading, Justices Souter and Stevens would not from the beginning of their careers be your first candidates for "liberal judges.'

But now - they're heroes. For some reason, somebody like Roberts, Thomas or Scalia do not hit me as being that type - of not having that kind of temperament.

May. 10 2010 11:56 AM
SuzanneNYC from Upper West Side

I think all this speculation -- even informed and reasoned -- is pointless. Who knows what she'll be like on the court over time? She's intelligent and thoughtful - which is fine by me. A big fight is not what is needed -- even if that is what some people want. I would not make it difficult for Democrats to vote for her. If she doesn't get appointed then who will? And what point would an ideological apocolypse serve at this time?

May. 10 2010 11:55 AM
Karen from NYC

I see that I've been misspelling Kagan's name -- sorry!

May. 10 2010 11:53 AM

We need to focus on idealogy for the Supreme Court. Their recent pro-corporate and anti-people decisions have proven they are dangerous to Americans. I think Bush has done enough damage in that court.

May. 10 2010 11:52 AM
Karen from New York City

I see that I"ve been misspelling Kagan's name -- sorry!

May. 10 2010 11:52 AM
Karen from New York City

I see that I"ve been misspelling Kagan's name -- sorry!

May. 10 2010 11:52 AM
Nick in NYC from Inwood

Well, if Republican administrations push as far as they possibly can to the right, and Dems just go for "centrists"... we'll end up with an imbalanced court, listing to the right - the point of compromise will be halfway between "center" and "far right".

So, strategically, this argues for a strong progressive advocate.

That said, it's depressing that the Court has to be just another arena for political bickering... so much for "blind justice". But why should we shoot ourselves in the foot and give it to the Right?

May. 10 2010 11:51 AM
Karen from New York City

I'm a lawyer (Columbia). I think that the answer to your question depends on the facts at hand. (How's that for a lawyer's hedge.) In this case, Obama has a conservative Supreme Court with a swing voter who is less ideological than emotional -- that's Kennedy. Kennedy is strongly influenced by "strong" personalities and intellects, and hence has been following Roberts' lead. Kennedy needed a leader, and Kagen can lead. She ain't leading right; that's for sure. In this case, the power to lead in the right direction -- temperament -- is more important than ideology.

The Progressives -- and I am one -- are off-base on this one. There are few questions about Kagen if you look at her history carefully. She includes the right, but swings left. She's not working for McCain, folks.

May. 10 2010 11:50 AM
Michael D. D. White from B

What is her position on Kelo-related follow-ups likely to be?

May. 10 2010 11:50 AM

Ideologies are bought and sold depending on which is more convenient to the individual; temperment puts distance between issues and its supporters/detractors.

If anything, I'd rather have analysts who can look at an issue and consider what the American ideals are.

May. 10 2010 11:44 AM

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