Judging Elena Kagan

To fill the void left by the departure of Supreme Court Justice John Paul Stevens, President Barack Obama nominated Solicitor General Elena Kagan to the high court last week.

With no judicial experience, only a couple of dense academic writings and few released memos, Kagan’s enigmatic record has left pundits on both sides of the political spectrum with much room to paint her in broad brush strokes. Some portray her as an ivory tower academic, while others suggest she is a centrist who is unfit to replace the “liberal lion” of the court. A clear judicial philosophy may elude the public’s eye, but one thing is apparent: the selection of someone with no “paper trail” reflects the politicization of the nomination process.

When Antonin Scalia was nominated to the court in 1986, every senator knew he was a jurist who narrowly interpreted the Constitution, but the Senate overwhelmingly approved his nomination with a 98-0 vote. Two decades later, when Samuel Alito – an equally fit jurist with far less conservative leanings – was nominated to the court, senators grilled him in committee hearings, narrowly approving his nomination, 58-42. Kagan will likely be approved along party lines because of election year jockeying by Republicans.

Kagan boasts an impressive resume: clerk to justice Thurgood Marshall, dean of Harvard Law School and, most recently, solicitor general. However, despite ascending the professional ladder so quickly, Kagan’s judicial philosophy is being pieced together with a handful of memos written while she served as counsel to former President Bill Clinton.This lack of a paper trail is a likely reason why she was selected.

Few people understand Kagan as well as Obama does. The two taught constitutional law together at the University of Chicago in the early ‘90s before he appointed her to be the federal government’s chief advocate two years ago. However, even Obama, who should be relishing the chance to shape the future of American jurisprudence, seems willing to play it safe and not expend any political capital with his latest nominee.

For someone touted as being one of the great legal minds of our time, Kagan has only offered fleeting glimpses of her stances on some of the most intense constitutional debates plaguing the court: the bounds of executive power during times of war and a woman’s right to an abortion.

She argued to continue many unpopular Bush-era policies as solicitor general, but it is unfair to assume Kagan’s personal views mirror her work at the Justice Department, because she is representing the federal government in court, not herself.

Kagan would be the first justice in four decades with no prior judicial experience. Her lack of any previous experience is not that disconcerting. Some of the court’s finest justices — Earl Warren, Louis Brandeis and William Rehnquist — had not served as judges either. In fact, appointing judges with prior judicial experience is a recent phenomenon. Until the 1950s, the court was packed with senators and governors.

But when compounded with her lack of experience on the other side of the bench as well, Kagan’s qualifications should have been scrutinized more when she was chosen for solicitor general. Kagan’s stint in the Justice Department has been less than impressive. Only arguing six cases, the courtroom novice missed an easy layup in Citizens United v. Federal Election Commission, the campaign finance reform case that grants corporations unprecedented influence in federal elections.

Hyped as a keen-minded “consensus builder,” her affable nature will be rendered moot due to her contentious relationship with Chief Justice John Roberts. She might have displayed a genial tone with the other justices during her arguments, but the highly fractured court is unlikely to be persuaded by the one justice who has argued fewer cases than some law clerks.

Replacing Stevens is a monumental undertaking. With his voice becoming increasingly nuanced and his mind growing more agile, the 90-year-old justice charted the course of liberal jurisprudence for the past quarter century. He expressed his views regardless of whether or not they were in the majority – a trait Kagan could have benefited from.

The battle for rights and liberties does not exist in some abstract theory taught at Harvard or Yale. It is waged at the marble steps of the Supreme Court. The power to affirm or deny the most essential rights should be placed in the hands of someone who has applied his or her intellectual curiosity to the legal battles of the day. Whether liberal or conservative, the arbiters of this nation’s legal battles — contrary to popular belief — can apply the law evenly and have a voice at the same time.

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