Federal Courts and Nominations

Defining Elena Kagan: Battle Lines Drawn on Blank Canvas


Now that President Obama has nominated former Harvard law School Dean and U.S. Solicitor General Elena Kagan to the U.S. Supreme Court, the battle to define her is on.

So far, she’s proving difficult to pin down. Her lack of judicial experience means there’s no trail of telling decisions to paint her as a lefty or moderate. Still, there are hints, and as the Senate prepares for confirmation hearings, both sides of the aisle are searching for reasons to support or attack her.

Peter Beinart, blogging at The Daily Beast, says Kagan will take heat for her decision as Harvard law dean to bar U.S. armed forces recruiters from campus because of the military’s don’t ask, don’t tell policy. “You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country,” he writes. “Barring the military from campus is a bit like barring the president or even the flag.”

The attack trial balloons are already being released, notes Andrew Pincus on talkingpointsmemo.com. A college thesis is being held up to question her commitment to capitalism and past statements are being parsed to determine her position on abortion. “The trench warfare now underway is the laboratory in which lines of attack and defense are tested and refined. The attackers are trying to identify arguments that will “stick”–that are not batted down quickly enough by the nominee’s defenders,” Pincus writes.

One line of attack, citing a speech Kagan gave memorializing former SCOTUS Justice Thurgood Marshall, for whom she once clerked, is being cynically used to question Kagan’s belief in the Constitution, claims Doug Kendall, of the Constitutional Accountability Center. Kagan was actually quoting Marshall, who had said it took “several amendments, a civil war, and [a] momentous social transformation” to get the Framers’ vision to apply fairly to all. “Not only is this history unimpeachable, it is hard to imagine anyone living Marshall’s life seeing the Constitution differently, Kendall writes.

Ed Morrissey, blogging at hotair.com, figures appointing someone without a judicial record opponents can sink their teeth into signals Obama doesn’t want a big, ideological confirmation fight. And he speculates the president may see a bit of himself in her. “She’s a lot like Obama — an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV,” Morrissey writes. “Republicans who oppose Kagan should focus on those shortcomings.

Progressives should have gotten more assurances that Obama’s choice will further their agenda, writes Paul Campos, at lawyersgunsmoneyblog.com. “Progressives – and indeed people of all political inclinations – should demand more,” Campos writes, lamenting that a lack of judicial experience gives no solid indication Kagan will help shift the court to the left. “A lifetime appointment to the Court should require more than having lots of friends in high places.” 


Read the original article here.


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