by Randolph T. Holhut
American Reporter Correspondent
May 13, 2010
ELENA KAGAN: A GOOD, BUT NOT GREAT, PICK FOR THE SUPREME COURT
DUMMERSTON, Vt. -- I can't say that I was surprised that President Barack Obama would nominate Solicitor-General Elena Kagan to succeed Justice John Paul Stevens on the Supreme Court. I can say that I was disappointed that he played so safe by picking Kagan, rather than a more experienced and more liberal nominee.
Kagan was on the short list of finalists for last year's vacancy on the court, the one which was eventually filled by Sonia Sotomayor. Looking at her record, you can see why Sotomayor was the top pick and not Kagan.
As a prosecutor, litigator and trial and appellate judge for three decades, Sotomayor had more federal judicial experience than any Supreme Court nominee in a century, and more overall judicial experience than anyone confirmed for the Court in the past seven decades.
By comparison, Kagan never served as judge. The closest she came was when President Clinton nominated her to the District of Columbia Circuit Court back in 1999, but then-Senate Judiciary Chairman Orrin Hatch (R-Utah) never held a hearing and the Senate never acted upon her nomination.
While Kagan has no judicial experience, she has plenty of legal experience. She graduated from Harvard Law School, an institution she would ultimately lead as its dean. She clerked for federal Appeals Court Judge Abner Mikva, who later became an important political mentor to Mr. Obama in Chicago, as well as for Supreme Court Justice Thurgood Marshall, whom she called her legal hero and the greatest lawyer of the 20th Century.
In the political realm, Kagan helped guide Ginsberg's nomination through the Senate Judiciary Committee and served two separate stints as an aide in the Clinton Administration. She is now serving as America's solicitor-general, the person who represents the U.S. government and defends acts of Congress before the Supreme Court; she also decides when to appeal lower court rulings.
At age 50, Kagan would be the youngest justice if confirmed and could serve for the next 20 or 30 years or more. As a woman, she would help the high court achieve a better gender balance, joining Sotomayor and Ruth Bader Ginsburg to give it three female members for the first time.
While some conservatives immediately attacked Kagan as soon as her name was announced by the White House, the reality is that she is a conventional, centrist Democrat. That won't, however, stop conservatives from trying to turn Kagan's nomination hearings before the Senate Judiciary Committee into fodder for the November congressional elections. Judging by some of the comments from the right in the last few weeks, their objections to Kagan are motivated by politics, not substance.
The only weapon the Republican minority in the Senate has is delaying a vote with a filibuster. But the Democrats have the votes to confirm Kagan, and Senate Judiciary Chairman Patrick Leahy, D-Vt., will make sure she will be fairly treated. Calling her a "superbly qualified candidate," Leahy said he expects her to be confirmed before the Senate leaves for its summer recess in August.
There are Democrats who will support Kagan simply because President Obama picked her, and Republicans who will oppose her for the same reason. But leave aside the politics, and there are some concerns about Kagan.
Her lack of a judicial record makes her a huge question mark. She has arguably the thinnest paper trail of any nominee since David Souter and her writings have offered relatively few clues to what kind of justice she would be. While some of her past legal writings reportedly show she is comfortable with certain progressive uses of judicial power, on the whole she doesn't strike anyone as a liberal judicial activist.
That's why I think President Obama missed an opportunity. He could have nominated a honest liberal for the position, but he, like many Democrats, doesn't have the guts to nominate anyone as liberal as Republican nominees Antonin Scalia, Samuel Alito or John Roberts have been conservative.
Republicans are relishing the chance to turn Kagan's confirmation hearing into a debate over constitutional issues. On the fringes of the right, the Constitution is interpreted to prohibit virtually every social and political advance since the late 1800s - including environmental and consumer regulation, the progressive income tax, the Federal Reserve, Social Security, Medicare and civil rights laws.
Democrats should welcome a debate like this, to highlight the radicalism of the conservative movement and to show Americans which party truly upholds the Constitution and the principles of our nation's founders. Kagan doesn't appear to be a strong enough candidate on which to base this argument. Because of this, President Obama may have lost his chance to stop the rightward drift of the Supreme Court.
Randolph T. Holhut has been a journalist in New England for more than 30 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at firstname.lastname@example.org.