Kevin Drum - May 2010

Easy Confirmation for Kagan?

| Mon May 10, 2010 12:17 PM EDT

Over at the Corner, Ed Whelan runs down a list of reasons to oppose Elena Kagan's nomination to the Supreme Court. In a nutshell, they are (1) she has no judicial experience, (2) she's an Obama crony, (3) Goldman Sachs, (4) she opposed military recruiting at Harvard because of DADT, (5) she has a thin written record, (6) aside from national security issues she's probably a garden variety liberal, and (7) we need to see her records from the Clinton White House.1

I consider this basically good news for Kagan. I assume this is a decent summary of all the available conservative oppo research on Kagan, and there's nothing new here. Hell, most of it has already been hashed out by the left, let alone the right. So this suggests that conservatives don't have anything more than this, and all they can hope for is that they get their hands on something juicy when Obama turns over Kagan's Clinton-era records. Which, frankly, seems unlikely given Kagan's obviously cautious nature even in private. The odds are pretty long that anything seriously embarrassing is lurking there.

If it turns out that Whelan's list is all they have, I doubt that conservative objections will gain even a little bit of traction. It's a nothingburger. She'll be donning her robe and hiring clerks by summer.

1Plus she's a bad driver. If Whelan is that desperate, there really must not be anything better he can come up with.

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Will Payday Lending Be Regulated?

| Mon May 10, 2010 11:40 AM EDT

Felix Salmon comments on the latest bit of financial reform insanity:

It's completely insane that a system which protects the relatively well-off customers of banks might include a carve-out specifically excluding the unbanked from any federal consumer protection.

What's he talking about? Payday lenders, of course, who are in an uproar over the idea that their business ought to be subject to any serious federal regulation at all. Keep your eyes open to see if this piece of the Senate reform package slowly gets whittled away until it's meaningless.

Kagan to be Nominated to Supreme Court

| Mon May 10, 2010 1:39 AM EDT

Well, Elena Kagan it is. No surprise there. But I sure hope this bit of analysis from the New York Times is wrong:

In his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.

Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle....But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.

Fine. But right now Obama has the biggest Democratic majority in the Senate he's ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan?

This isn't the worst thing in the world. It's not as if I think Kagan is a reactionary in sheep's clothing or anything like that. But I still don't get it. When Obama compromises on something like healthcare reform, that's one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn't have to do this. Unfortunately, the most likely answer is: he does it because he wants to. Some socialist, eh?

Europe Finally Stops Dithering

| Mon May 10, 2010 1:21 AM EDT

The EU has finally stepped up and created a trillion dollar fund to defend the euro against "wolfpack" investors who have been betting heavily against Greek/Portuguese/Spanish bonds and sending bond yields through the roof. However, the biggest part of the fund isn't quite ready for prime time yet:

The €440 billion pledged by euro-zone governments isn't immediately available cash in hand. Instead, a specially created off-balance-sheet entity will borrow the money, as needed, and then lend it out to the country or countries in trouble. The special entity's borrowings will be guaranteed by euro-zone countries — excluding the country asking for aid. This construction helps skirt the EU treaties' prohibition on one state's assuming the debt of another....This portion would need approval by the parliaments of contributing countries, something that could delay a rapid payout of funds.

Italics mine. I wonder if there are going to be any recalcitrant parliaments out there? And I wonder if any of the dozen or so fights it's going to take to get approval for this fund will just end up making Europe look even more feckless than it already does? Remember what happened when Congress initially voted against TARP?

This could turn out very well or it could.....turn out the opposite. Keep your fingers crossed.

(On the bright side, the WSJ also reports that "perhaps more important is the news that the ECB will act to shore up the shaky european bond market. Many investors had been calling for the ECB to take this step, and the ECB's failure to announce such a plan following a ECB governing council meeting last week was a key contributor to a significant sell-off Thursday." This is similar in spirit to what the Fed did in 2007-08, and since the ECB can do it unilaterally it will kick in immediately.)

Quote of the Day: Sarah P. on Mother's Day

| Sun May 9, 2010 1:03 PM EDT

This is, seriously, a Mother's Day tweet from Sarah Palin:

U.S. Moms: we are thankful 4 freedom!Despicable treatment of women in Iran(setting U.N.policy on women’s rights)make U.N.credibility a joke

We bloggers have an impressive ability to politicize anything and an even more impressive ability to somehow connect the day's events to whatever our personal hobbyhorses happen to be. But we are as children compared to Sarah.

Personally, I'm thinking of dinner and flowers for Mother's Day. But that's just me.

Some Kagan Contrarianism

| Sun May 9, 2010 12:54 PM EDT

I think I might have to award Jonathan Zasloff this month's Slate award for awesome contrarianism for his post today about Elena Kagan. After noting that she somehow managed to get tenure at the University of Chicago and then become dean of Harvard Law with a shockingly thin academic record, he says that's a feature, not a bug:

This shows that Kagan may not be a great scholar, but she is enormously skilled at impressing older colleagues — and that’s just what the doctor ordered for this appointment.

Essentially, any Supreme Court appointment this cycle has two tasks: 1) vote the right way; and 2) convince Anthony Kennedy to do the same.1 Kagan seems to have the skills to do that.

Indeed, if you think about it, those justices with the greatest scholarly credentials have not generally been thought of as effective concerning the Court’s internal politics. Holmes and Brandeis were essentially isolated dissenters. As Richard Lazarus has demonstrated, Antonin Scalia has consistently undermined his own authority within the Court by insisting on his own theories of things. It is people like Earl Warrren, William Brennan, John Marshall, and John Paul Stevens, who were plenty smart but not infatuated with their own jurisprudential theories, who got things done.

Barack Obama is a student of the Court. I think he understands this history. And it’s why he’s leaning toward Kagan.

Well, OK. But if you want to play in the big leagues, Jonathan, you need to add a few paragraphs about the history of ass kissing and how it's underrated by mainstream scholars. Then throw in an example of an obscure but history-changing court decision that was turned around at the last second by an epic case of brown nosing, preferably something from a district tribunal in 19th century Northern Rhodesia. You'll have the crowd on its feet!

Anyway, Diane Wood has six kids and plays the oboe. I'll bet she can convince just about anybody of just about anything. I have a pitch in to Jacob Weisberg for a piece that explains the whole thing.

1On another note, maybe it's time for all of us to tone it down on the whole Anthony Kennedy thing. The more we talk about how the next nominee needs to be someone who can wrap Kennedy around their little finger, the more likely Kennedy is to get grouchy and peeved about the whole thing. So let's all just keep this between ourselves from now on, OK?

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Facebook's Plan for World Domination

| Sat May 8, 2010 6:22 PM EDT

I think this is just a coincidence, but my qualms about Facebook seem to have cropped up at exactly the same time that a widespread anti-Facebook backlash has started brewing on the web. Then again, maybe it's not a coincidence. My qualms came from somewhere, after all. Either way, though, it is a little fortuitous since it was only a week ago that I actually started using Facebook for anything useful. (When I switched to HootSuite as my Twitter client, I went ahead and added a Facebook feed, which means I've been following my Facebook news feed for the first time ever for the past week. I could have done this before, but I just never bothered.)

Anyway. It turns out you can hardly swing a dead mouse without hitting an anti-Facebook screed these days. Here's Ryan Singel:

Facebook has gone rogue, drunk on founder Mark Zuckerberg’s dreams of world domination. It’s time the rest of the web ecosystem recognizes this and works to replace it with something open and distributed.

And here's Robert X. Cringely:

You want to make your Facebook totally private to anyone but your actual friends? You can’t, though you can come close. And it will only take you 50 clicks inside Facebook’s Wonderland-like labyrinth of privacy controls. Have fun.

This week brought news of two separate bugs that let Websites secretly install their apps on your Facebook profile and let your friends eavesdrop on your private chats. Facebook swatted both bugs relatively promptly, but not before they made their way into the press. I can understand how Facebook missed the chat security hole — you have to follow a fairly arcane series of steps to reproduce it. But calling the secret app problem a “bug” is a bit hard to swallow.

Want more? Matt Yglesias shares Harvard memories of Zuckerberg's questionable dedication to privacy ethics here. And Matt McKeon's clever timeline of Facebook's eroding privacy defaults is here. For my part, I've redrawn a part of McKeon's graphic in a different format below. For six different aspects of your Facebook profile, it shows how widely they're available by default and how those defaults have changed over time. In 2005, for example, your name was available only to your friends and your networks. By 2009 it was available to the entire internet. And by "entire internet," this often means third party applications who get access to everything you do and everything you like. Some people are fine with that, some people aren't. But at least you should know.

Elena Kagan's (Non) Record

| Sat May 8, 2010 2:27 PM EDT

I'm not much concerned about Elena Kagan's allegedly nefarious ties to Goldman Sachs, which is quickly becoming the attack du jour for anyone you don't like. As a Californian, I've spent the past few weeks watching Steve Poizner in heavy rotation attacking Meg Whitman as a Goldman Sachs stooge and I guess I've gotten a little jaded about the whole thing. Seems like much ado about nothing.

But Kagan's academic record is another thing. Kagan was dean of Harvard Law for most of the past decade, and deans often don't do a lot of scholarly writing. So it's no surprise that her recent law review record is a little light. But this, from Paul Campos, was a surprise:

Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship — three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review — a scholarly journal edited by Chicago's own faculty — and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing.

The whole piece is worth reading. I think Campos's comparison of Kagan to Harriet Miers probably takes things too far, but I have to say that Kagan's ability over the years to avoid expressing an opinion on almost anything is pretty remarkable. That said, though, she has expressed an opinion on at least one thing, and center-right law professor Jonathan Adler thinks that might be a problem for her:

31 voted against confirming her to be Solicitor General, and Senators are almost always more deferential to Administration picks for the Justice Department than the Courts. So it’s safe to assume that she starts approximately 30 votes in the hole. As with [Diane] Wood, there are some obvious sources of controversy, such as Kagan’s support for barring military recruiters at Harvard Law School because of “don’t ask, don’t tell,” and the subsequent Solomon Amendment litigation.

....SG Kagan’s record could produce additional flashpoints that Judge Wood would not have to worry about — flashpoints that will produce stories long after the “day one” profiles. For example, if Kagan is nominated Senate Republicans will demand access to executive branch records from her time in the White House counsel’s office during the Clinton Administration (much as Senate Democrats demanded such documents for John Roberts and others). There is already speculation about what such a document dump could reveal, and there are almost certain to be surprises of one sort or another.

Diane Wood would get attacked too, of course, but Adler argues that her vulnerabilities — "a handful of opinions concerning abortion and religious liberty, and perhaps a criminal case or two" — are strictly "day one" problems. I agree. Everyone knows that Wood is liberal, and everyone knows that Obama isn't going to nominate someone who isn't a liberal. So although a few liberal rulings will provoke the usual outcry from the usual suspects, it just isn't likely to have much traction. There are no surprises there. With Kagan we can't be sure of that.

Now, I agree with Adler that both Wood and Kagan are likely to be confirmed, so this is hardly a definitive reason to reject either one. But Kagan does strike me as a bit riskier, and it's hard to figure out why you'd nominate someone who's both riskier and has such an aggressively ambiguous record on almost everything of importance. This is one of the main reasons why I think Obama would be better off nominating Diane Wood, who has a clear and invigorating record on a wide variety of progressive issues and boasts a highly respected academic background.

All that said, it's also true that personal recommendations from people you trust are meaningful. The fact that Kagan worked in both the Clinton and Obama White Houses is meaningful, and endorsements from people like Larry Lessig are meaningful. What's more, I've long believed that presidents deserve a substantial amount of deference in their nominations. Kagan is pretty obviously qualified in all the usual ways, so if Obama nominates her I'm not going to go ballistic over it.

And I predict that he will. Why? Because Obama seems to have almost a sixth sense for doing things that annoy me just a little bit. On most issues he's roughly in the same ballpark as me, but in the end he always seems to end up just a notch to my right. Not enough to really piss me off, but enough to keep me perpetually just a little disappointed. A Kagan nomination would fit that pattern perfectly. So I'm bracing myself for yet another mild disappointment.

Friday Cat Blogging - 7 May 2010

| Fri May 7, 2010 2:59 PM EDT

Back in 2004, Inkblot got his shot at fame when the New York Times decided to write a story about him. Seriously. Here it is. I still use that picture on my Facebook page.

But time marches on, and Twitter has replaced blogs as the hot new social media. And the star of Twitter isn't Inkblot, it's Sockington, profiled this week in People magazine. Inkblot gets a few thousand followers via this blog, but Socks gets 1.5 million followers via Twitter. As you can see below, that makes Inkblot melancholy. Over on the left, he's practically given up at the thought of matching Socks' fan base. It's just too daunting a task what with sunny weather beckoning in the backyard. To make it worse, his amanuensis, unlike Jason Scott, is an aggressively non-clever human who has no chance of creating an Inkblot Twitter feed that would draw even 1.5 thousand followers, let alone millions. Very sad. Domino, on the other hand, thinks Inkblot already gets too much attention and is showing off her bathing abilities this week for your approval. I swear, Domino is the loudest, lickiest cat in the world. She keeps Marian up for at least ten minutes every night by hopping onto her pillow at bedtime and proceeding to give herself an extremely slurpy, extremely thorough bath. It's an experience not to be missed. 

Is Facebook Evil?

| Fri May 7, 2010 1:58 PM EDT

The more I read about Facebook, the more I really don't like Facebook. I'm way behind the curve on this stuff, but the other day I read a post about privacy settings and realized just how little I know about it. I've always been pretty sparse with my Facebook account, so I'm not really worried about my darkest secrets becoming public or anything, but after reading this and then following the links I went in and changed a whole bunch of settings that had made my preferences available to third parties at Facebook's whim. I had no idea these settings even existed. Then today I read this. "There is something seriously wrong with their business ethics," says Thomas Baekdal, "when they even contemplate publishing content that was previously marked private."

Ya think? As near as I can tell, Facebook's business model is to periodically chip away at privacy settings, wait for the inevitable blowup, maybe give up a little bit of what they changed, and then wait for the fuss to blow over. Then six months later do it all over again. Rinse and repeat. Slowly but surely, they'll be able to monetize every last bit of our lives and we'll all be so tired we won't even care. Or even notice.

I know I'm a dinosaur about this stuff, and maybe David Brin is right that privacy is a lost cause and we should all forget about thinking we have any, but I'm not ready to give in yet. I've been careful with Facebook in the past, but I think I'm going to be downright paranoid about it in the future.