President Obama introduced his nominee for Supreme Court Justice today, current Solicitor General Elena Kagan. Kagan will fill the vacancy caused by John Paul Stevens’ impending retirement, and her confirmation would mark the first time three women have sat on the high court at the same time. Seven Republicans voted to confirm her as Solicitor General, though the going won’t be easy this time either, as one Republican Senator, James Inhofe, has already stated his opposition.
It’s no surprise that Kagan tends to lean left, but the main line of opposition lies in Kagan’s lack of judicial experience – though she has many years as an attorney and as an academic dean, she has not served as a judge. Supporters may say that William Rehnquist also possessed the same lack of time as a judge, yet the argument that it’s been done before rings hollow as a justification for moving forward.
There’s no doubt that Kagan is an accomplished and intelligent woman. She leaves a paper trail that is tremendously thin, leaving opponents little ammunition for attack but underscoring a thinness of the resume that may harm her during the confirmation hearings. It may be tempting to compare her to Harriet Meiers, though her nomination spoke more to cronyism and loyalism on the part of Bush than Kagan’s nomination does.
It’s likely the President thought this was a “safe pick,” and she’ll still more than likely pass a vote in the Senate. But even her record as Solictor General seems thin, serving little more than fifteen months and offering exchanges like the one below where Justices Scalia and Kennedy chide her for her lack of clarity on Supreme Court precedent (via HotAir):
ORAL ARGUMENT OF ELENA KAGAN
ON BEHALF OF THE APPELLEE GENERAL KAGAN: Mr. Chief Justice and may it please the Court:
I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
Number two –
JUSTICE SCALIA: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.
GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.
JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.
GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.
JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that.
Again, I don’t doubt Miss Kagan’s credentials – I have some reservations whether she has had enough experience to perform as one of the highest adjudicators of the Constitution. There is a large chasm between knowing the law to advocate for one side or another in a case and understanding the law well enough to weigh both sides and come to a fair interpretation of it.
There are rumors that Kagan is a lesbian, which I could frankly care less about and in a perfect world wouldn’t be an issue at all. Social conservative groups will be idiots if they make this a big deal, as will gay rights groups if they try to publicly out her (as Andrew Sullivan is apparently advocating). The vast majority of the rest of us care more about her temperament, her experience, and her judicial philosophy – all of which give me more than a little pause.