Is Kagan the New Brandeis?

[usregimechange]

The New Republic's strong endorsement of Elena Kagan is a rather odd piece of work. To borrow an analogy from Bill James, the general thrust of the argument is sort of like the Chicago Bulls scrub who combined his "contribution" with Michael Jordan's 54 points and noted that North Carolina alumni had combined for 55. Similarly, TNR's strategy is to link Kagan with the liberal icon Louis Brandeis, who once held the seat Kagan has been nominated for.

On its face, the analogy between Brandeis (a rather prickly, solitary intellectual with a voluminous record of published liberal views preceding his Supreme Court nomination) and Kagan (a go-along-to-get-along networker with a remarkably consistent record of failing to express controversial views on any subject) is strikingly inapt. So what is the basis for the comparison? Kagan is said to share Brandeis' belief in "judicial restraint." But like its flip side, "judicial activism," at this level of abstraction it's a vacuous term. Modern Supreme Court justices all vote to strike down legislation at a similar rate, and there's no reason to believe Kagan will be any different. It's true that Kagan will almost certainly vote to uphold the heath-care bill and the other centerpieces of Obama's agenda, but this is more a minimum qualification for a Democratic appointee than a sterling recommendation. And the potential that she may show greater deference to the state on civil liberties issues is a bug, not a feature.

http://www.prospect.org/csnc/blogs/tapped_archive?month=05&year=2010&base_name=is_kagan_the_new_brandeis

emphasis added.

[Pab Sungenis]

1. I almost expect her to be the next Rehnquist.

Or Souter-In-Reverse.

She's more likely to be either of those than the next Brandeis.

[usregimechange]

2. I disagree, I would bet more in the mold of Breyer but the problem is...

we don't know.

[Dr.Phool]

3. Weren't she and Thomas both attorney's for Monsanto?