James Doty: The Liberal Case Against Kagan is Overstated





[James Doty is a writer and lawyer living in New York.]

Over the past several weeks, a chorus of progressive voices has portrayed Elena Kagan -- whom President Obama is expected to nominate for the Supreme Court on Monday -- as an intellectual cipher. She may be smart, they argue, but she has provided few clues about her thoughts on any major legal issues and even fewer about her judicial philosophy. Even worse, her critics claim, what we do know about Kagan’s beliefs suggests that she is sympathetic to Bush-style arguments on executive power and thus, on at least one major issue, threatens to move the court significantly to the right.

These criticisms are, at the very least, dramatically overstated. A review of Kagan’s professional record and writings suggests that she would fit comfortably on the left-hand side of the judicial spectrum.

To begin with, Kagan’s professional biography reveals that she has spent the last several decades working closely with some of the country’s best known left and center-left figures. After graduating from Princeton, where she wrote an article hoping that a “more leftist left” would emerge in American politics, Kagan enrolled at Harvard Law School, where she served as a research assistant for the famed liberal law professor Larry Tribe. After her graduation from Harvard, she clerked first for Abner Mikva, a legendary figure of the American political and judicial left (and an Obama advisor). She next clerked for Thurgood Marshall, another liberal icon, whom Kagan has called her legal hero and the greatest lawyer of the 20th Century.

Following her clerkship with Marshall, Kagan worked on Michael Dukakis' presidential campaign, helped shepherd Ruth Bader Ginsburg’s nomination through the Senate Judiciary Committee, and served two separate stints in the Clinton administration before assuming her current role as Obama’s solicitor general. None of this speaks directly to Kagan’s personal beliefs, of course. But it does suggest that she feels most at home in the company of those who are ideologically left-of-center....

The evidence we have from Kagan’s life and works might not be abundant, but on the whole, it shows her to be a conventional Democrat who is comfortable with at least certain progressive uses of judicial power. It’s also true that Kagan’s writings are often frustratingly and excessively circumspect, a trait that was probably aggravated by Clinton’s failed attempts to place her on the federal bench in 1999. The charge that Kagan has failed to clearly espouse a progressive approach to constitutional interpretation is a fair one, but that’s a much different accusation than the claim that she’s a blank slate. It’s one thing to lack progressive ideals; it’s another thing to mute them in the service of ambition. We might not admire Kagan for that choice, but it hardly suggests that her elevation to the court would result in the constitutional cataclysm that some on the left apparently fear.

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