President Obama announced today that Elena Kagan, the administration’s current Solicitor General, will be his choice to replace retiring Supreme Court justice John Paul Stevens. Aside from her role as Solicitor General, who’s tasked with arguing on behalf of the US government before the Supreme Court, Kagan also served as the Dean of Harvard Law School, President Obama’s alma mater.
Having never served as a judge herself, Kagan has no history of potentially contentious rulings, nor are her ideological stances necessarily clearly established. Such a pick may leave potentially feisty Republicans in congress, many of whom are likely itching for a fight with the administration, without any real just cause for a lengthy, drawn-out nomination.
Observers on both sides of the political fence may wonder if Kagan’s nomination says less about President Obama’s principles and more about political expediency. Qualified or not, is Elena Kagan merely the easiest, safest pick?
Liberals might see Kagan as yet another rebuff from the administration. Despite popular caricatures of his ideology by some of the loudest members of the mainstream media, President Obama has consistently tended to opt for compromises and middle-of-the-road positions when push comes to shove.
Obama may have too easily abandoned the much touted “Public Option”, a cause célèbre among liberals, and his recent proposal to open new areas for offshore oil drilling was seen as a slap in the face to vocal environmentalists who might have hoped that his presidency would usher in a paradigm shift when it comes to our reliance on fossil fuels.
Those on the right of the political spectrum, who have already demonstrated an urge to take a fine-toothed comb to every move the administration makes, may interpret the nomination as cronie-ism. Kagan spent some time as a tenured professor at the University of Chicago Law School, and Chicagoans seem to make up much of Obama’s inner circle at the White House.
She was appointed to be the dean of Harvard Law School by none other than Larry Summers, former president of Harvard and now the head of Obama’s economic advisory council. Not only is she the former dean of the President’s alma mater, Obama himself was of course the president of the Harvard Law Review, the influential legal journal published by Harvard Law School.
A contentious issue on which Republicans will likely seize is Kagan’s refusal to allow military recruiters at Harvard Law School during her time as president. Kagan’s own point of view was eventually knocked down by the Supreme Court, which ruled in favor of allowing military recruiters so long as federal money was being obtained by the school.
While Kagan’s position on military recruiters was based on her opposition to the military’s Don’t Ask Don’t Tell policy regarding gays, liberals remain skeptical. Doubts have been expressed on traditionally liberal media outlets, such as Alternet, about whether or not Kagan will remain faithful to the left-leaning tendencies of the justice she’s replacing, John Paul Stevens. From issues regarding her minority hiring record to her apparent support of the indefinite detention of terrorists, the left has plenty to be disappointed about.
Given the lack of a judicial record and the attempts to divine her political ideology, I think it would be prudent to ask Kagan three fundamental questions at her confirmation hearing. Firstly, what is her stance on gay marriage? On the one hand, Kagan opposed the presence of military recruiters at Harvard due to her objections of the discrimination of gays serving in the military. Kagan referred to the military’s Don’t Ask Don’t Tell policy as a “profound wrong”, though she also claimed that there is no constitutional basis for the right of gays to marry. It is difficult to tell where she actually stands on the issue.
Second, what are her opinions regarding the legality of indefinite detention without trial? Again, her statements here have been somewhat unclear, though it seems she would side with the administration as she did when she defended indefinite detention during her confirmation as solicitor general.
Finally, if confirmed would she hold steadfastly to the conclusions she reaches on the bench or would she try to build consensus and compromise? The Obama administration seems to be portraying Kagan as a census-builder, so it seems that she would bring an end to the consistent voice of principled dissent that John Paul Stevens embodied.
In the end, it’s almost certainly too early to tell what kind of justice Kagan will be, and a justice is almost certainly what Kagan will be. It’s doubtful that congressional Republicans, apparently trying hard to please the loudest right-wing fringe elements of their party in order to secure primary votes and general election enthusiasm, will have any substantial ammunition to use against her, making her confirmation essentially guaranteed.