Jeffrey Rosen: The Next Justice





[Jeffrey Rosen is the legal affairs editor of The New Republic and author of The Most Democratic Branch: How the Courts Serve America.]

In a 1998 profile of Elena Kagan in the New Republic, Dana Milbank described Bill Clinton’s deputy chief of domestic policy as “wonderwonk,” an “all purpose brain” in the White House and a “nerd who could talk tough.” In addition to acting as a walking encyclopedia for Bill Clinton on constitutional and legal issues, Kagan convinced John McCain and other Senate Republicans to accept the Food and Drug Administration’s authority to regulate tobacco—even though she herself was a former smoker who then indulged in the occasional cigar. This combination of formidable intelligence with a skill for bringing together ideological opponents has characterized every stage of Kagan’s career....

It’s encouraging that Obama has ignored attacks on Kagan by enforcers of ideological purity on the left and the right, both of which caricature her essentially centrist record. The attacks from the right focus on her support, when she was dean of Harvard Law, for the misguided and unsuccessful law suit challenging the constitutionality of the Solomon Amendment, which denies federal funds to schools that barred military recruiters because of opposition to the gays in the military policy. The White House will try to rebut these attacks by offering testimony from conservative Harvard colleagues who argue convincingly that she is no Warren Court liberal.

As for the attacks from the left, there are some who yearn for a return to Warren Court liberalism, where the courts imposed liberal policy views over the objection of the president and Congress. In addition to being politically impractical (we are unlikely to see a Supreme Court majority of Warren Court liberals in our lifetime), this strategy has also been rejected by President Obama, who recently criticized liberals for relying too much on courts to fight their battles for them in the 1960s, a strategy that he said ill prepared them for fighting conservative judicial activism today. Kagan is very much in the model embraced by Obama in his book The Audacity of Hope, where he observes that advances in our understanding of liberty and equality have always come primarily from grassroots political activism, and while courts can codify progressive values, they can’t impose them on an unwilling nation. In the great battles over progressive regulations that will occupy the court for the next decade, Kagan will be a compelling advocate for liberal judicial restraint, insisting that congress and the administrative agencies deserve deference, and criticizing conservatives who seek to use the courts to reverse their political defeats....

Nominees reveal their legal vision (or lack of vision) in hearings more than they know. In an academic article she will no doubt most regret, Kagan laid out what conservatives are already calling the “Kagan standard,” insisting that senators should question Supreme Court nominees closely. The Kagan standard is well worth applying to Elena Kagan, because her answers to the many legitimate questions about her views are likely to demonstrate her intellectual security, ability to empathize with and win over her ideological opponents, insistence on clarity, judicial temperament, and political skill. In Kagan, Obama has a Supreme Court nominee who has the potential to carry his own constitutional vision of progressive judicial restraint far into the twenty-first century.

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