Elena Kagan—The President’s Choice
| May 11, 2010
For his second nomination to the high court, President Obama once more chooses a woman—one who lacks a paper trail of judicial opinions and has a history of pulling support from more than one ideological sector. And that, argues the author, is what makes some people nervous.
Trailblazing leader Elena Kagan has made history as the first female solicitor general, first female dean of the Harvard Law School and now the nominee to be the fourth woman to serve on the U.S. Supreme Court. President Obama chose Kagan to replace retiring Justice John Paul Stevens and serve along with the two current women justices, Ruth Bader Ginsburg and Sonia Sotomayor. Having three women serve together for the first time in the Supreme Court’s 221-year history will bring that institution one step closer to reflecting the population it serves. Yet, I am disappointed that the Supreme Court will still lack an African American woman.
At 50, Elena Kagan could enjoy a long and illustrious career like Justice John Paul Stevens’ 35-year tenure. President Obama compared Elena Kagan to Justice Stevens, whose keen legal understanding coupled with an appreciation for a humane appreciation of the law’s impact on citizens, stood as the court’s voice of reason. Obama characterized Kagan as one of the “foremost legal minds in the country” and a “trailblazing leader” who seeks consensus on a matter by “understanding before disagreeing.” She, like Justice Stevens, knows that behind the law are stories of people whose lives are impacted by the law.
A granddaughter of immigrants, Elena Kagan will bring the full package to the high court, tapping experience from all three branches of government—executive, legislative and judicial. Early in her career, she served as law clerk for Justice Thurgood Marshall. There she received lessons in justice and life from the acclaimed jurist who understood first hand as former solicitor general and a litigant the court’s impact on the lives of ordinary people.
Kagan later worked as a White House lawyer under President Bill Clinton and served as a Senate staffer. Unlike the other current Supreme Court justices, she never served as a judge. With her Yale Law School degree, however, she is like all her potential colleagues in graduating from either Yale or Harvard.
Although senators opposed to her confirmation may use it as a weapon against her, Elena Kagan’s lack of prior judicial experience is no barrier to her serving on the court., As solicitor general, she prepared and argued cases before the Supreme Court and thus thoroughly understands its workings. In the case of Brown v. Board of Education argued by her former boss, then attorney Thurgood Marshall, only one of the justices had served as a judge before appointment. Some of the court’s keenest minds and writers of its most noted opinions—such as Felix Frankfurter and Louis Brandeis—were not prior judges. Former Chief Justices William Rehnquist and Earl Warren, both nominated by Republicans, never served as prior judges. However, as a trial lawyer, I do take exception to Justice Frankfurter’s assessment that the correlation between being a prior judge and fitness for the Supreme Court is “precisely zero.” Some judicial experience couldn’t but help.
Elena Kagan’s temperament is well suited for the high court, being acclaimed by her colleagues as a respecter of opposing viewpoints and a consensus builder. Former President George W. Bush’s attorney, Bradford Berenson, supported her solicitor general nomination, recalling her as having a “fair minded consideration of opposite views.”
Some speculate that Kagan’s tenure as solicitor general will require her to recuse herself from hearing a high number of cases. But more reasonable estimates suggest that she will probably not fair any worse than Justice Clarence Thomas who recused himself from 17 cases during his first term.
President Obama has made a wise choice in nominating Elena Kagan. First, his nomination recognizes the importance of more women serving on the Supreme Court to reflect our country’s diversity. Second, he’s playing it safe, recognizing that Kagan is battle tested as a solicitor general nominee; she knows how to handle herself. Third, he recognizes her intellectual and temperament skills as consensus builder.
Finally, her lack of prior judicial experience will blunt opposition by Republicans who would prefer a long trail of legal opinions to dissect and attack. Yet, the extent to which her positions are unknown is making a lot of people nervous. Progressives are troubled by Kagan’s stance on the Sixth Amendment, that the right to effective counsel only applies when defense attorneys give incorrect advice and not when they remain silent on issues such as deportation. Her support of the legality of detainees’ detention without trials is also troubling to progressives. Conservatives will no doubt take issue with her refusal while Harvard’s dean to allow military recruiters on campus due to her opposition to “Don’t Ask Don’t Tell.”
Nonetheless, it is likely that Kagan will receive enough votes to be confirmed by the Senate. If so, I wonder whom President Obama will nominate to replace her as solicitor general. Will he nominate another woman or perhaps the first black woman to serve as solicitor general to fill her capable shoes? We cannot afford to take one step forward and another step backward.
But let’s take one step at a time.
The views expressed in this commentary are those of the author alone and do not represent WMC. WMC is a 501(c)(3) organization and does not endorse candidates.
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