It is telling that Republicans and conservatives seem uninterested in mounting any strong resistance to Elena Kagan’s nomination to the Supreme Court. A year ago, many on the right were furiously attacking the relatively unobjectionable Sotomayor, but now that Obama has nominated Kagan, who is apparently far worse on civil liberties and executive power than the justice she will be replacing (or Sotomayor for that matter), there is a strange resignation to the inevitable. To hear their leaders and activists tell it, the GOP is rapidly gaining political strength, and they are obviously in a stronger position today than they were a year ago, but their response has so far been quite tepid.

Perhaps they are all too tired out from combating Sotomayor’s non-existent racism that they don’t have the energy to resist a nominee who appears to be a willing enabler of the worst excesses of the national security state. In reality, we all know that most Republicans have no interest in checking those excesses, and many of them have become so attached to defending such excesses that it has become part of their political identity. To the extent that most Republicans are content with or not overly concerned about Kagan, because she seems to line up with them on some of the issues on which the GOP has been appallingly bad, progressives, libertarians and small-government conservatives have reason to be worried.

Obviously, Kagan has enough votes to be confirmed regardless of what Republicans do, but it is a timely reminder how unimportant constitutional limits are to so many of the people who cannot cease talking about freedom here and abroad and how much many of them value a virtually unchecked executive. It appears that Obama has made a terrible choice, which is just one more in a long list of egregious decisions on civil liberties and the expansion/preservation of executive power. He should be excoriated for that, but unfortunately his opposition seems to have no interest in doing this. In an instance when Republicans’ reflexive, hysterical resistance to everything Obama says or does might actually serve the best interests of the Court and the country, they become indifferent or enthusiastic in response to one of his decisions. It would be a pleasant surprise if all the people who have been raging against the oppression of the health care bill could muster one-tenth of the intensity to challenge a nomination that could do significantly more permanent damage to constitutional liberty in the future than bad, unaffordable social legislation.

This confirmation process poses a real danger for progressive Democratic Senators, especially those up for re-election this year. When many of their core constituencies are already disaffected and unenthusiastic about voting in the fall and Democratic turnout is down generally, they will probably be alienating even more of their base by confirming Kagan. I fully expect all but a handful of Democrats in the Senate to roll over for the sake of a swift confirmation, and I tend to doubt that even someone as good on these issues as Feingold will put up much resistance. It is hard to see what will motivate their supporters to turn out this year if it leads to nothing but “centrist” compromises in Congress and the nomination of national security “centrists” to the Supreme Court.

Especially after the last decade, we need no more “fans of presidential power” on the Court. It would be ideal if we could have some serious critics or even foes of presidential power there, but at the very least we need justices who do not cheer executive power. Even from what little we think we know about Kagan’s views on these issues so far, she should not be confirmed.