What I Think About .. Elena Kagan, Supreme Court Nominee

Clearly, I would not have nominated Elena Kagan for the Supreme Court. While nothing (so far) in her background rules her out, neither does anything in her background jump out and shout “Supreme Court!” She has a tiny paper trail so far, excluding the papers from her time in the Clinton White House. She is reliably liberal, and certainly not an intellectual match for Roberts, Alito or Scalia. I don’t expect that she will vote to overturn Roe v. Wade, but can’t rationally expect any Obama nominee to do so. The biggest “qualification” weakness I find is that she is apparently not a particularly good writer, and a huge part of the job of Supreme Court justices is to write persuasive and clear opinions.

I don’t pay much attention to the “no Protestants” and/or “Catholics and Jews” nonsense.  First of all, I explicitly reject that kind of thinking .. this is America, and race and religion don’t matter. Further, even if it were to matter, it isn’t relevant here. Jewish heritage has no apparent much impact on her.  She is culturally a Boston liberal far more than she is a Jew.

I also don’t care if she is a lesbian, although I find it amusing that the left is making hay over her orientation while the right doesn’t seem to care.  Just wait .. we will soon be hearing  homophobe smears laid on those who do oppose her.

All of that said, while I don’t think she is a great candidate, neither do I think that the Republicans should do much to oppose her beyond vote their conscience.

Ms. Kagan is in my opinion about the best we can expect from President Obama.  Clearly, we could do a LOT worse — Cass Sunstein, Eric Holder and Hillary Clinton spring to mind immediately. Knowing Obama, if Kagan is defeated he will go hard left (perhaps Sunstein) to someone who would be downright dangerous on the court.  In fact, part of me suspects that Kagan is a sacrifice and that Obama doesn’t intend to see her confirmed.  Another part of me wonders if Obama has decided that he doesn’t need to start another front of all-out war. Time will tell, likely in the form of some tell-all book in 2014 or so!

I don’t see Kagan dramatically changing the court.  She isn’t any more liberal than Stevens.  One proposed rationale for her nomination is that her personal charisma and warmth will can pull Kennedy leftward. That is far too speculative to justify using the political ammunition to take her down.

Finally, there is one element to her past that speaks favorably of her .. her hiring of conservative and libertarian faculty while dean at Harvard Law School.  As Dale Carpenter noted on on Volokh:

Kagan’s decanal record does suggest an openness to opposing views, a seriousness about ideas, and perhaps a willingness to be persuaded. Those are some of the qualities I’d want to see in a judge. And they are qualities that ought to give some comfort to conservatives and libertarians facing the prospect of Justice Kagan, ca. 2040.

Addendum For the legal masochist .. a single page with all Kagan posts on Volokh Conspiracy.