P resident Barack Obama’s choice of U.S. Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens is politically shrewd and
expedient. And it’s not the worst possible outcome for liberty-minded constitutionalists.
Kagan, 50, would be the youngest member of the high court. Her resume is impressive though she is not a judge. Obama appointed her solicitor general — the federal government’s representative when presenting cases before the Supreme Court — and she was the first female dean of Harvard Law School.
At Harvard, Kagan was widely credited for attracting more conservative professors. And she was vocal about what she called the “military’s discriminatory recruitment policy,” referring to the military’s ban on openly gay members, which Kagan decried as a “moral injustice of the first order.”
Aside from her overtly impassioned stance on “Don’t ask, don’t tell,” Kagan has been careful and measured as to give little insight into her judicial leanings, and it is doubtful her Senate confirmation hearing will shed as much light as we would like.
In 1995, in reviewing a book on the confirmation process, Kagan wrote that “when the Senate ceases to engage in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” In other words, she thought nominees should be grilled on substantive issues.
But during her confirmation hearing as solicitor general, she mostly demurred when Senate Judiciary Committee members sought her opinions about the Supreme Court’s voiding of the District of Columbia’s ban on gun ownership, about capital punishment in general and about a 2008 Louisiana case where the court decided the death penalty wasn’t appropriate for child rape. She said the solicitor general’s job is to defend the government’s position, not to have opinions of her own. We can only hope that also suggests she could lean toward strict interpretation of the Constitution from the bench.
Obama should have little trouble confirming Kagan to the Supreme Court. As the Cato Institute’s Ilya Shapiro put it, Kagan is almost a safe pick and “wouldn’t cost too much political capital.” She already has been vetted by the Senate and the media once for her current job, and she has virtual no “paper trail” of judicial rulings that could derail the process.
A seemingly safe choice makes sense for President Obama at a time when he has little political capital, given the tough battle over the health care bill. And, of course, the appointment of Kagan would leave a long-term mark on the court by Obama because she would be able to serve a very long time.
Kagan is not as far to the left as some of the other names thought to be on the president’s “short list.” Her appointment is not ideal, but Kagan might just be a centrist, which is the best we could expect.
It is unclear as to whether Kagan is of the same ideological mold as the liberal Justice Stevens, but, of course, as has been the case with other high court appointments, we sometimes don’t know until the decisions are handed down.