MT Thoughts

On the Legal History Blog, Mark Tushnet compares the President's Supreme Court nominee with FDR's choices:

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.

I've always thought Tushnet (whom I've met--is it even worth dropping the name of someone unknown to 99% of the public?) is an intriguing scholar, but if he believes this he's off his rocker.

FDR operated in a time when the big fight was would the Court step aside and let the government intrude on all aspects of American life--civil rights were, at best, an afterthought. Nowadays, it's accepted that America's business is the government's business, while what gets court watchers excited is how they interpret all those civil rights Amendments.

In other words, sure, the hope that Kagan will allow the executive branch a lot of leeway is the same hope of every President, but I don't think it was a primary consideration. Kagan is a reliable leftist, and that was foremost on Obama's mind. It's almost bizarre that Tushnet could think this is a matter of indifference--it's literally unimaginable that Obama would pick someone who wouldn't generally reflect his views on these issues, while Obama can only hope Kagan will go along with other things.