The battle over Kagan begins

Liberal and conservative activists searched for clues about a nominee to the Supreme Court with a thin paper trail.

What happened

Partisan battle lines formed this week over President Obama’s nomination of U.S. Solicitor General Elena Kagan to the Supreme Court, while liberal and conservative activists searched for clues about a nominee with a thin paper trail. Obama nominated Kagan, the former dean of Harvard Law School, to replace retiring Justice John Paul Stevens, a stalwart liberal. Kagan, 50, won respect in conservative circles when she insisted on bringing in conservative professors while at Harvard Law, and has carved out a reputation as a strategic thinker, pragmatist, and consensus builder. “Elena is respected and admired not just for her intellect and record of achievement but also for her temperament,” Obama said in introducing her.

Republican Jeff Sessions, the ranking minority member of the Senate Judiciary Committee, complained that Kagan had spent her life in the “rarefied air” of elite universities and high-ranking positions in the Clinton and Obama administrations. Republicans also sought to portray Kagan as “anti-military” for her role in restricting the access of military recruiters at Harvard Law School as a result of the Pentagon’s “don’t ask, don’t tell” policy on gays, which she said violated Harvard’s nondiscrimination policy. Liberals expressed reservations of their own, pointing to Kagan’s lack of a clear record on abortion, and her endorsement of indefinite detention of prisoners at Guantánamo. In an extraordinary response to widespread rumors, the nominee’s friends said that the unmarried Kagan has dated men and is not gay. “I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then.

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What the editorials said

“Obama has tapped the legal world’s version of himself,” said The Wall Street Journal. Kagan is “a skillful politician whose cautious public persona belies a desire to transform the court and shape a new constitutional liberalism.” A former clerk for liberal Justice Thurgood Marshall, whom she considered a hero and a mentor, Kagan is “unlikely to break from the High Court’s liberal bloc on any major legal dispute.” That’s especially unfortunate because the 50-year-old could be on the court for decades.

“Kagan is a superb pick,” said the Chicago Sun-Times. As the federal government’s top litigator, a law school dean, and a University of Chicago law professor, Kagan has honed a “fine legal mind,” and has the right temperament to win over frequent swing vote Justice Anthony Kennedy. But we hope she honors the words she wrote 15 years ago, complaining that judicial confirmation hearings had devolved into “vacuity and farce.” The country deserves forthright answers about her legal philosophy. But such honesty wouldn’t be prudent, said The Boston Globe. And everything about this “carefully vetted” nomination denotes caution. Indeed, it’s unlikely that Kagan’s hearings will provide even “a clue” about the kind of justice she’ll make.

What the columnists said

Kagan is “the consummate Obama insider,” said Ed Whelan in National Review Online. But she “may well have less experience” than any justice in the last half-century. “In addition to zero judicial experience,” she has barely practiced law, and her scholarship is “scant,” consisting of a handful of essays and law review articles. Kagan falls short of the “minimal qualifications needed for a Supreme Court nominee.”

Like Obama, Kagan has made a successful career out of being “inscrutable,” said Dahlia Lithwick in Republicans may choose to interrogate her harshly and delay her confirmation until the fall, but “how do you wage an epic world war over a constitutional sphinx?” Even friends don’t know what she thinks, said Paul Campos in The New Republic. Somehow Kagan has managed to compile a “largely blank record of opinion.”

That’s her ticket to the Supreme Court, said David Brooks in The New York Times. Kagan, who has dreamed of becoming a judge since adolescence, has dutifully scaled the meritocracy, impressing mentors and acquiring influential friends. By remaining “carefully nonideological,” she forged a career perfectly suited to a judicial confirmation process “that punishes creativity and rewards caginess.” Her “willingness to suppress so much of her mind for the sake of her career” demonstrates an astonishing level of discipline and ambition, but it’s also “kind of disturbing.”

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