Kagan for the Supreme Court

May 10th, 2010

By Tom Carter

It’s reported that the President will nominate Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court, replacing the retiring Justice John Paul Stevens.

While Kagan, 50, has no experience as a judge, she’s a well-educated lawyer and a former law professor, law school dean, clerk to a U.S. appeals court judge, clerk to a Supreme Court justice, and high-level White House staffer.  She also has a reputation for working well with people of all political persuasions and being able to build effective coalitions.  The New York Times has published a good biographical review.

Kagan is a liberal, of course.  However, I’d guess that she won’t have much trouble being confirmed by the Senate, given that she’s well-known in Washington and has worked positively and productively with Republicans in the past, including Senator John McCain.  The only problem might be a skeleton in a closet somewhere, which most people seem to have.  She was confirmed by the Senate previously and no skeletons were found, but at this level we can expect the hunt to be intense.

Liberals won’t find much to object about, although the far left may think she isn’t sufficiently prone to throwing firebombs.  Her past as a smoker and her tendency to smoke a cigar now and then may put them off, liberals being who they are.

Conservatives, especially religious right-wingers, may find a few things they don’t like.  For example, she strongly supports abortion rights.  She’s a Jew who would be joining a Court that has six Catholics and two Jews (not counting Justice Stevens), with no Protestants.  There have also been rumors that she’s gay, although the White House has denied it.

All of these things could, and probably will, create a storm among those on the far right. The right-wing blogosphere will undoubtedly be highly incensed, coating their monitors with spittle as they wax indignant.

I think Kagan would be an excellent Supreme Court justice, and I hope she’s confirmed (barring the discovery of any hefty skeletons).  This would also be a good opportunity for Republicans in the Senate to join Democrats in confirming her, if only to illustrate that they’re capable of bipartisanship now and then.

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2 Responses to “Kagan for the Supreme Court”

  1. Dan Miller |


    I think we have many basic areas of agreement. I am probably a tad more concerned about her lack of judicial experience, and think she should be questioned intensively on why this should not be an impediment to her confirmation. Aside from that, she seems to be about the best a reasonable conservative might realistically wish for. Her views on gay marriage will doubtless upset many on the left, and her anti-ROTC stand while at Harvard will doubtless upset some of those on the right. I personally think ROTC is a great idea and, while I hated every minute of it, I found that my experience as an Army JAG corps officer both enjoyable and enlightening.


  2. Tom |

    Dan, as you know better than I, there are no constitutional qualifications, much less experience requirements, for a Supreme Court justice, aside from the requirement to be nominated and confirmed. A lot of justices hadn’t had earlier judicial experience, including Chief Justices John Marshall and Earl Warren. However, I generally agree that prior experience as a judge would probably be helpful for a new justice.

    Having said that, I have to wonder if maybe someone from outside the system wouldn’t have some advantages. First, she can’t be fried by publicity-hungry senators over her previous decisions as a judge, something that’s both improper and unseemly. Second, she can bring a fresh attitude to the job. I think all that really matters is knowledge of the law, good judicial temperament, and respect for the Constitution. From what I know of Kagan so far, she seems qualified on all counts.

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