June 02, 2010

FDR 2.0?

Mark Tushnet, guest blogging at Legal History Blog:
The basic story is simple. Roosevelt was looking for justices who would uphold the New Deal's major initiatives or, more generally, who held expansive views of the scope of the national government's powers under Article I. He was relatively indifferent to his nominees' views on issues of civil rights and civil liberties, as his nominations of Reed and, later, James Byrnes show. ...

I mentioned Elena Kagan in this post because my sense -- based on no inside information, of course -- is that her selection reflects a strategic calculation by President Obama similar to FDR's. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors, and is relatively indifferent to his nominees' views on other questions. Put pretty crudely, SG Kagan hasn't been vetted for her views on what we might call "Warren Court" (or "Brennan-Marshall") issues (other than the scope of national power) -- which may be why some on the liberal-left side of the spectrum are nervous about what she would do as a Justice dealing with those issues. (A minor point that I haven't seen made elsewhere: Even assuming all the somewhat critical things some have said about the way she structured her career, her first career choice was to decide who to clerk for on the Court of Appeals. Again, assuming that she wanted to get a Supreme Court clerkship, when she made her choice there were a number of "feeder" judges, some quite liberal, some less liberal, some conservative, and some extremely conservative. She chose to clerk for Abner Mikva, about as liberal a feeder judge one could have found when she made her choice. I for one (to use a locution favored by the Justice she clerked for) think that provides some indication of her views on Brennan-Marshall issues.)

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