This question actually has no answer,since, as with any Supreme Court nominee, we have no idea how they will perform on the bench. However, there are ways to foresee the future by looking at the nominee’s record and views on legal issues. So let us take a moment to foresee the future. Shall we?
Let us look at Kagan’s record. This is probably the hardest part of the post to write since her record is lacking. Kagan has spent the majority of her legal career in academia as a professor at the University of Chicago Law School and as Dean of Harvard Law. Surprisingly her time was not spent writing or speaking on legal issues. During her time in academia she wrote 6 scholarly law review articles.
When Kagan was not in academia she was working for Democratic administrations (Clinton and Obama). While in the Clinton administration Kagan was Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. And for President Obama, Kagan was/is Solicitor General. As Solicitor General, Kagan is obligated to defend the administration’s policies regardless of whether she agreed with them.
The question everyone should be asking is why would Obama nominate someone with such a blank slate? According to Glenn Greenwald of Salon.com, “Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.” As Goldstein wrote at SCOTUSblog:“it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”
By picking Kagan, Obama is signaling that he doesn’t want a confirmation battle. But by picking someone with a slim record, the pick could have an unwanted outcome by moving the Supreme Court to the right, which could have a profound effect. President Bush’s (41) Supreme Court nominee was David Souter, who, like Kagan, people knew little about. President Bush picked Souter thinking he was a conservative but once on the bench, voted in a very liberal fashion. History could be repeating itself with the nomination of Kagan.
President Bush (43) tried nominating Harriet Miers, who, like Kagan, never expressed her views on pressing legal issues. Harriet Miers was never confirmed because conservatives couldn’t trust the opinion of President Bush. Why aren’t progressives being out spoken about President Obama’s nominee? Shouldn’t they be speaking out about Kagan’s judicial and Constitutional philosophy, which little is known?
Even though Kagan’s record is limited, her legal views can still be interpreted to some extent, but will have to be analyzed further during the confirmation hearings to make a final conclusion. Unlike other legal academicians who have, over the years, protested against Bush/Cheney governing template, such as, policies implemented during the war on terror. Elena Kagan has been silent. For example, Georgetown Law Professor Neal Katyal — Kagan’s not-at-all-progressive Deputy Solicitor General — was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees.
Where was Kagan? The only time Kagan expressed some form of an opinion about the overreach of executive power was during her Solicitor General confirmation hearing where she endorsed Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition during questioning by Senator Lindsay Graham. Before progressives are going to endorse shouldn’t they be able to say that she agrees and endorses progressive issues? Glenn Greenwald writes
Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly. Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.
In June of 2001, Kagan, writing in the Harvard Law review, defended President Clinton’s use of executive power, which was an unprecedented attempt to control administrative agencies (domestic agencies) by expanding a variety of tools of presidential power. Although this is universes away from the Bush/Cheney (foreign agencies)use of executive power, it still shows that she advocates for more executive power.
When it comes to social issues Kagan seems to be on the side of liberals. While Dean of Harvard Law she refused to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination, but later reversed her decision. While working in the Clinton Administration she worked on issues such as tobacco regulation, welfare reform, education, hate crimes and affirmative action. But it is still unclear whether she was pressing her point of views or those of the administration.
This is a very disappointing nomination by President Obama. There are many more impressive alternatives that have a proven and substantial record. Progressive need to be more like conservatives in the sense that conservatives use Supreme Court nominations to articulate their conservative view of legal thinking, while progressives seem to be scared to articulate their progressive view of legal thinking.
Side note: To read more articles about Elena Kagan, here are more articles..
The Case Against Elena Kagan, The Ten Biggest Issues Elena Kagan Will Face, Obama’s Natural Choice, Will The Real Elena Kagan Stand Up?, 9750 Word on Elena Kagan, Elena Kagan as Scholar, “Washington Intellectual Dishonesty” Defined, Blank Slate, New Judge to Confront Evolution in Powers Liberal Activists Intensify Attacks on Kagan as Court Pick Nears, In Kagan, Obama Picks a Nominee, Not a Fight, Searching for Elena Kagan, What it Takes, Obama Nominates Kagan