Elena Kagan, nominated by President Barack Obama for the Supreme Court, has been depicted as a common-touch populist with the judicial intellect of Louis Brandeis and the political skills of William Brennan.
Not since 1991, when President George H.W. Bush called his high-court nominee Clarence Thomas the “most qualified” choice, has there been so much hyperbole about a nominee.
Kagan is very smart and is qualified for the Supreme Court. She’s also a political novice, her judicial breadth is evolving, and she has spent most of her adult life in elite environs.
Obama’s cheerleading and his aides’ insistence the Kagan pick was a bold move are off the mark. She was the safest, most conventional choice.
Once again, the politically polarized emotions of any Supreme Court selection these days distort reality. In less than a week the most egregious misrepresentations are from the opposition.
Social conservatives have seized on her position on a ban on military recruiting at Harvard Law School, where she was dean, to protest the armed services’ refusal to allow openly gay men and women to serve. This often is misrepresented; military recruiters came to Harvard then, they just temporarily lost access to the campus’ Office of Career Services.
Military at Harvard
Moreover, Harvard Law School isn’t a prime farm club for the U.S. military. In the four years since the Supreme Court ruled against limits on military recruiting at universities, only 10 of the 2,977 Harvard Law School graduates, or one third of 1 percent, have joined the military.
Republican conservative critics also have railed about her lack of judicial experience; Arizona Senator Jon Kyl wondered whether, at 50, she might be too young. A lack of judicial experience would have disqualified such justices as Lewis Powell, Hugo Black, Earl Warren, Brandeis, Robert Jackson and Chief Justice William Rehnquist, who was first named to the court at age 47.
Surely Kyl doesn’t think his fellow Arizonan and conservative, Rehnquist, was unqualified.
The president invited this hype when in announcing the Kagan appointment, he called her one of America’s “foremost legal minds” and stressed her links to “ordinary people” in fighting against “unscrupulous corporations.” He specifically praised her for, as solicitor general, arguing (unsuccessfully) the government’s side in the Citizens United case in January, in which a narrow court majority opened the floodgates for corporate and special-interests money into federal political campaigns.
Historian Sean Wilentz, who taught Kagan at Princeton University, says intellectually she’s reminiscent of the fabled Justice Brandeis. White House advisers and others have lauded the political skills she would bring to the court, citing her ability to work with diverse factions at Harvard Law School -- she was tapped for that job by Lawrence Summers, then president of the university -- and her brokering of an anti-tobacco deal with Republican Senator John McCain of Arizona during the Clinton administration.
Most everyone who knows Kagan praises her sharp intellect. Yet her lack of scholarly writings or judicial decisions makes it impossible to call her a towering judicial intellect. As solicitor general, court watchers say, she was only a fairly effective advocate.
She certainly was an effective dean at Harvard, and one empathizes with anyone who has to endure countless faculty meetings with the likes of Alan M. Dershowitz. Yet this isn’t the same as negotiating compromises on controversial high court decisions; the late New York Democratic Senator Daniel Patrick Moynihan was fond of saying academic politics is so bitter because so little is at stake.
Her role in fashioning the tobacco agreement is exaggerated. These were the days, 1998, when McCain was a maverick, and as chairman of the Commerce Committee, eagerly took on the tobacco industry. At the time, David Kessler, the head of the Yale University School of Medicine, attributed the success to “John McCain’s courage.”
She did, as Obama boasted last week, argue the difficult Citizens United campaign-finance case before the Supreme Court. That was the biggest case she inherited upon taking the job, and the solicitor general usually argues the major cases.
The president insisted that in tapping Kagan he’d achieved his objective of a justice who identifies with the lives of “ordinary” people. Kagan has lived almost her entire life in Manhattan, Cambridge, Massachusetts, and Washington.
If she’s confirmed, every member of the Supreme Court will have a Harvard or Yale pedigree, and not a one will have faced a voter. If Obama gets another nomination, he may want to consider someone who graduated from Ohio State or Texas law schools, or ran for sheriff.
Kagan’s gender, however, is an important contribution to a court that sometimes on issues like sexual discrimination seems remarkably out of touch with ordinary people and real lives. Three women may be able to smack a little judicial sense into their male colleagues.
Even before the Kagan hearings begin, the contours of this debate and the outcome are clear. Democrats are going to vote for her; there is no case for them not to. Most Republicans will go through the motions of open-mindedness, and then vote against the nominee. After the right-wing elements in the Utah Republican Party dumped conservative Senator Bob Bennett last week, does anyone believe there’s a ghost of a chance Orrin Hatch, facing re-election in two years, would vote for an Obama Supreme Court nominee? In 2005, then-Senator Obama himself made a similar calculation in voting against John Roberts knowing it would be a negative if he ran for president. That’s how court nominations play out these days.
In a book review 15 years ago, Kagan assailed the Supreme Court nomination process as serving “little educative function” except to reinforce “cynicism.” Now that’s starting even before the formal process begins.
Smart and confident, Kagan has the capacity to serve on the Supreme Court and to challenge Chief Justice Roberts as he tries to move the court to the right. That’s sufficient and doesn’t need embellishment.
(Albert R. Hunt is the executive editor for Washington at Bloomberg News. The opinions expressed are his own.)