Elmont Online

In a not-too-surprising move, President Barack Obama nominated Solicitor General Elena Kagan to the U.S. Supreme Court yesterday. If confirmed, Kagan will replace Justice John Paul Stevens, the leading liberal voice on the Court.

Kagan’s nomination appears to be a ‘safe’ one for a number of reasons. However, there are an equal number of reasons why this nomination may entice strong opposition from Republicans. Obama’s nomination of Kagan is lauded by Democrats as a good choice for the following reasons:

• Kagan has been described as a consensus builder who will survive the confirmation process because she’s been through it already. In March, 2009, Kagan was confirmed as U.S. Solicitor General by a divided Senate 61-31. Kagan was able to garner support from 7 Republicans who reached across the aisle and voted for her confirmation.
• Kagan has no prior judicial experience. No prior judicial opinions will mean a quicker confirmation hearing as there will be no paper trail for critics to parse looking for language that is premonitory of judicial activism.
• Kagan is 50 years old. Her confirmation will mean a long tenure, thereby giving Obama the chance to leave a lasting imprint on American jurisprudence.
• If Kagan is confirmed, the Court will be more inclusive and more representative of the American population. The U.S. Census website reveals that females comprise approximately 50% of the U.S. population. If Kagan is confirmed there will be the 3 women serving on the court at the same time – the highest number of women serving, ever. Kagan’s vote will be important when the closely divided high court decides contentious cases which impact women such as Roe v. Wade.
  
  Some see Kagan’s lack of prior judicial experience as an advantage. On the other hand, some see it as a disadvantage because it yields less fertile ground for predicting Kagan’s ideology. However, Kagan’s lengthy history in politics and academia may give those willing to search a sneak peek into understanding the judicial philosophy of a future “Justice Kagan”. For example:
• Kagan’s opposition to on-campus military recruiting because of U.S. policy barring gays from serving openly in the armed forces gives some insight into how a Justice Kagan may vote when and if the military’s “don’t ask, don’t tell” policy comes before the Court.
• Kagan served in a paid position on an advisory board for Goldman Sachs – the latest example of greed in the financial industry. Kagan’s service on this board may prove useful in predicting how she may vote if and when lawsuits filed by the Securities and Exchange Commission involving financial reform come before the Court.
• In 2005, while serving as the Dean at Harvard, Kagan and 3 other deans of major law schools wrote to oppose legislation by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba. This letter may give some indication of how a Justice Kagan may vote if cases involving detainees at Guantanamo or trials for terror suspects come before SCOTUS.
• Kagan also clerked for Thurgood Marshall. After his death, Kagan’s wrote a tribute to Marshall which was published in a 1993 law review article. In the article, Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.” Some may argue that this shows Kagan’s propensity to set aside her role as an impartial judge and let her opinions, sympathies and prejudices influence her decisions.
• Kagan did not give tenure to any minorities while she was serving as Dean at Harvard Law School. Thirty one of the school’s 32 tenure-track hires were white, and none were African American or Hispanic. Apparently no “qualified” minorities could be found.

Kagan’s lack of judicial experience may make some people uncomfortable.  But since when does judicial experience denote common sense and superior analytical ability? Just think about the Citizens United decision. Notwithstanding the judicial experience of the high Court’s conservative majority, they ruled that “We the People” includes corporations.

Kagan’s confirmation may be a no-brainer simply because the numbers are in her favor. With control of 59 votes in the Senate, she will probably get the job.

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