Kagan Nomination is No Surprise

There has been talk for weeks about who President Obama would nominate to replace retiring Justice John Paul Stevens, but the smart money has always been on Solicitor General Elena Kagan. Here’s why.

First, the President knows she will be a reliable vote to uphold his own expansive political agenda.

Justice Stevens’ retirement comes at an inflection point for the Supreme Court. Many observers have suggested that one cause of the court’s decreased docket in recent years is the lack of major new legislation, because any new legislation requires years of litigation before its real contours and interpretation become fully established.

The current Congress and Obama Administration have provided us with new fodder for lawsuits in spades as they have presided over unprecedented government expansion into one industry after another, beginning with home financing and the auto industry, and continuing with the healthcare industry, cap-and-trade, and the financial industry that is gearing up for yet another bailout.

President Obama and congressional leaders have treated the question of the constitutionality of their new legislation as illegitimate or disdained it as partisan nitpicking, but in fact constitutional scrutiny is a necessary part of our limited government, whether the legislation is ultimately found to be constitutional or not. If confirmed, Elena Kagan will have a decisive vote as to whether this new legislation is given a hard look or given a pass.

Kagan has championed extensive executive power, and from what we know of her record, she is very politically pragmatic, which suggests she would agree with the President that questions of constitutionality should be left to “the political process” rather than the Supreme Court. Pragmatism may be an asset in a law school dean, but calls into question whether she would approach judicial decision-making the same way.

One interesting example is a document leaked from Kagan’s time advising President Clinton from his domestic policy office. She told him that he should support a proposed federal law banning late-term abortions. Stop the presses—did President Obama just appoint a pro-lifer to the Supreme Court? Not at all.

Kagan suggested that he support the bill despite personally opposing it and despite the fact that Clinton’s own Justice Department said it would be unconstitutional. She didn’t contend that it actually was constitutional (although I would argue it was) but advised the President to take what she viewed as an unconstitutional action because it would provide him political cover and because she thought it would look bad if Congress overrode his veto of the law. This is not the advice of a principled legal scholar, it’s the calculation of a politician.

Another reason President Obama picked Elena Kagan is her thin public record. Her lack of a known position on many issues, including what approach judges should take to their legal work, is due in part to her complete lack of judicial experience.

Judges are faced with the real application of laws all the time, and must weigh in on a host of issues that come before the court. In deciding cases, each judge expresses his or her judicial philosophy that will prove fundamental to everything from obscure details of statutory interpretation to core questions of constitutionality. A judge must actually take a position on things like whether international law is relevant in interpreting the Constitution, whether constitutional rights are fixed or “evolving,” and how far the text of a law can be stretched to accommodate the presumed intent of the lawmakers. This is why most of the judges on Obama’s short list probably were ruled out—they were already on record taking positions that would shock the American public on a range of issues including abortion, religious freedom, the death penalty, and criminal sentencing.

Even for a life-long academic, Kagan’s paper trail is shockingly thin. Her scholarship is not only unusually sparse, but limits itself to making observations describing what the law has been and how courts have interpreted law, not what it should be or how courts ought to approach a case. It is truly amazing to find a person who has spent nearly two decades engaged in the world of legal academia who managed to so carefully shield her opinions from view.

The paucity of evidence as to Kagan’s views suggests that a thorough Senate confirmation process will be particularly important in her case. Which is what Kagan herself called for in a 1995 book review reflecting on Justice Ginsburg’s confirmation. She said, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” That is even more the case when the confirmation process offers the only insight the public and the senators will ever get into a nominee’s views before confirming her to a lifetime spot on the Supreme Court.

Finally, Kagan was a shoe-in for this spot because, underneath her carefully maintained façade, she is as liberal as they come. Obviously she has met President Obama’s stated qualifications of being willing to decide hard cases on “empathy” rather than law and supporting Roe v. Wade and the invented constitutional right to privacy.

She has stated that she believes the military’s exclusion of homosexuals is a “moral injustice of the first order” and challenged a law requiring schools who received federal funds to admit military recruiters. On this issue, at least, she is to the left of even Justice Stevens; the position she adopted was rejected unanimously by the Supreme Court. While at Princeton she expressed hope that a “more leftist left will once again come to the fore.”

Now she may have the opportunity to make her college-era dream come true.

He’s done it—he picked Kagan. Now the smart money knows she won’t be confirmed without a fight.


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