The Supreme Court Mystery

Who in the world is Elena Kagan? Why in the world did President Obama nominate her? How is it that Republicans and Democrats have begun to see the same picture, and report radically different visions? Supreme Court nominations, and the idea of the Court itself, have always been something of an enigma to the citizens of our democracy. We were all taught in civics or government class that the Court exists in our system of checks and balances, but we are deeply suspicious of it nonetheless.

The nomination of Elena Kagan, expected for weeks, has succeeded in driving other important news (financial reform, immigration reform, the Gulf environmental catastrophe) from the front pages. The initial Republican lines of attack are both humorous and obvious. Rush Limbaugh called Ms. Kagan an "intellectual lightweight" (her bipartisan status as brilliant notwithstanding). John Cornyn and others also immediately attacked her lack of judicial experience...she has never been a judge. Republicans in this new century have stood out for their short memories and ability to reverse themselves. Chief Justice (and conservative icon) William Rehnquist was appointed to the Court in 1972 by Richard Nixon...without having served as a judge previously.

In looking critically at Ms. Kagan's career, however, she has managed to build a solid reputation on a somewhat liquid paper trail. Academics are, in general, measured on their publications. While Ms. Kagan has authored a handful of highly regarded papers, the generous description of her career would be to say, "she picks her spots". Her lack of a standout record, ironically, has lead to strident opposition from the liberal base of the Democratic Party. Ms. Kagan, through her limited paper trail and the questions asked of her during her confirmation hearings for Solicitor General, reveal a lawyer with a strong belief in the role of precedent. They do not reveal a lawyer with a strong record of advocacy for liberal principles.


Most damming, from a liberal viewpoint, is the notion that Ms. Kagan might actually be a strict constructionist in the Clarence Thomas mode; it is this prospect that has caused many to see her nomination as moving the Court to the right. Only in America friends, could one person be framed as a liberal activist judge by one side, and a conservative constructionist by the other. Part of this owes to the political branding of our time; Republicans have decided to oppose every bill and nomination of this President, regardless of intent, process, or practice. But this nomination, especially in light of the commonly held notion that Mr. Obama was trying to avoid a confirmation battle, is intriguing.

So who is she? Elena Kagan is, as many Republicans have begun to state, an Obama clone. She is articulate, brilliant, and comfortable in debate. She loves the law, respects its boundaries, and understands the effects it has on individuals. She is a credentialed consensus-builder, and has a record of attracting and working with conservative thinkers. Her portfolio at Harvard is a profile in cross-aisle engagement; Mr. Obama still (and will always, I think) fight for the notion that engagement and compromise with conservatives is a responsibility. Elena Kagan joined the ideologically monolithic Harvard Law School as Dean, and proceeded to attract and hire top-flight conservative legal minds to diversify its faculty.

The missing piece for liberals is why. Ms. Kagan also believes in engagement, as well as the benefits of an environment where diverse opinions and methodologies are at the forefront. This comports with the President's ideals, and her excellence during her time at Harvard is a driving force in Mr. Obama's belief in her candidacy. What is difficult for liberals to understand, and infuriating for Republicans trying to draw a bead on her, is the habit Ms. Kagan seems to have adopted of keeping her nose out of other people's business.

Liberals have criticized Ms. Kagan for not using the position as Dean of the Harvard Law School as a bully pulpit to criticize the Bush Administration. She wasn't there to criticize the Bush Administration, she was there to expand, enrich, and protect the foremost Law School in the nation. One might think that Republicans would appreciate this lack of advocacy, but their focus on her time at Harvard revolves around military recruiting. Harvard, like many schools around the country, strongly felt that allowing the military to recruit on campus, in light of its discrimination of homosexuals, violated their own standards on equal protection.

Elena Kagan supported the effort up to the point that the Solomon Amendment (which requires schools receiving federal funding submit to this situation) was deemed constitutional by the Supreme Court. Ms. Kagan, in the face of the Court's ruling and the potential loss of funding relented, instead signing an Amicus brief (with other faculty) on the matter. If you choose to disagree with her perception on the military's treatment of homosexuals, by all means do so. Some Senators however, have been careful to leave out the reason why she removed the recruiters, framing it instead as a frontal attack against the military.

I have struggled with this nomination for 48 hours now. In coming to my conclusion, I have applied the test suggested in a previous post. The test consists of these three questions:

1. Do they revere the rule of law and an ordered society?
2. Are they constitutional scholars who have devoted themselves to the study and understanding of the document and its place in our nation?
3. Are they brilliant, fundamentally rational, and generally mature enough to stay above the political fray?

After much consideration, I have come to the conclusion that I know enough about Ms. Kagan to say yes to all three questions. As I argued before, the placement of an artificial ideological framework around candidates is an exercise in futility, and ultimately pollutes the Court. John Paul Stevens, whose position Ms. Kagan is slated to fill, was appointed by Gerald Ford. Despite being nominated as a conservative, by a Republican president, Stevens became the leader of the liberal wing of the Court, and a bonafide consensus-builder.

Liberals have derided the appointments of John Roberts and Samuel Alito as motivated solely by ideology. Now, they believe, is the time to "balance" or "countermand" those appointments. This thought process represents exactly the kind of activity that conservatives have become so adept it, and which liberals rightly protest. Why now strike the same deal, with the same devil, in pursuit of the same ultimately worthless treasure? Elena Kagan represents the considered choice of a President liberals and independents chose...not for his combativeness, but for his maturity. Conservatives have little to attack in this selection without resorting to blanket hypocrisy, and liberals ought to have a little faith in the judgment of a man who himself is a constitutional lawyer.

The Rational Middle is listening...