Can Kagan Bridge Divided Court? Consensus Is No





In touting Elena Kagan's qualifications, President Obama described his nominee to replace liberal Supreme Court Justice John Paul Stevens as a proven "consensus-builder."

Since his announcement, the Kagan-as-a-consensus-builder talking point has been the one most relentlessly promoted by supporters making the case for her Senate confirmation.

The evidence cited? Kagan, 50, now the nation's solicitor general, was widely viewed as a calming and popular force while dean of Harvard Law School, where she is credited with mending deep divisions among the faculty and breaking fundraising records.

But historians say that her successful stint as dean from 2003 to 2009 predicts little about how she will function as a member of the high court, particularly at a time when a five-vote coalition — much less a full nine-judge consensus — has proven elusive, if not downright impossible, for the conservative-leaning court's liberal wing.

And history provides scant evidence that an individual justice can serve as a coalition or consensus catalyst, says David Garrow, who has written extensively about justices and the high court.



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