Should Elena Kagan be confirmed as a Supreme Court justice?

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Food for Thought

Ilya Somin

I don’t have a lot to say about Obama’s nomination of Elena Kagan that can’t be said better by others. Unlike now-Justice Sotomayor, she does not have an extensive record on issues that are within my core areas of expertise. I do, however, want to highlight one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas.

I. Kagan’s Relative Openness to Non-Liberal Views of the Law.

My general view of Kagan is that she is quite liberal and likely to vote with the liberal bloc on the Court on most important issues. At the same time, however, her record at Harvard shows that she has respect for alternative perspectives and takes them seriously. In this respect, , she seems different from Sotomayor, who wrote several opinions that disposed of major controversial legal issues in a cursory fashion that made it clear that she did not believe that the other side had a serious case that deserved serious consideration...

Given the nature of the Obama Administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee and that she would probably be confirmed. In such a situation, I would rather have a liberal justice who takes alternative perspectives seriously and might occasionally be persuaded by them than one who is generally dismissive.

When President Obama taps Solicitor General Elena Kagan as his nominee to replace retiring Supreme Court Justice John Paul Stevens this morning, he will be will making a cautious choice that runs the risk, in the words for former National Lawyers Guild president Marjorie Cohn"move the delicately balanced court to the Right."

Attorney General Eric Holder may believe that Kagan will"be a great justice,"

And there is no particular reason to argue with the assessment from People For the American Way President Michael B. Keegan, who said Monday that: “Elena Kagan is a bright and clearly qualified nominee.

But Keegan stopped short of a full embrace of the pick.

"I look forward to the confirmation process and learning more about the judicial philosophy she'll bring to the high court," the head of the liberal watchdog group, which has a long and admirable record of monitoring court picks. “This confirmation process presents a unique opportunity for a dialogue about the role of the Court and the meaning of our Constitution. Over recent years, the Roberts Court has pushed a political agenda from the bench, favoring corporations and powerful interests over the rights of ordinary people. We’ve seen longstanding Constitutional principles and laws designed to protect families and individuals casually tossed aside in pursuit of a rigidly conservative ideology.

Keegan says he looks forward to a"national conversation" about the Kagan nomination, and so should we all.

That conversation should begin with an honest admission that Kagan's record does not suggest that she will be as great, or as liberal, as Stevens....

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....

WASHINGTON — She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking....