Assessing high court nominee

May 19, 2010


So, what to think about the nomination of a solicitor general, ex-Harvard law school dean, ex-Clinton official, ex-University of Chicago law professor, and graduate of Princeton University and Harvard Law School?

First: Elena Kagan is no left-wing radical. She grew up on the Upper West Side of Manhattan, known more for its expensive shops and restaurants than for the fire of radicalism. Children of the Upper West Side of Manhattan grow up surrounded by a genteel liberalism, which often matures into middle-of the-road politics by the time they turn 30.

In 1980, following the election that brought President Reagan and the new conservative movement to power, Kagan wrote an editorial for the Daily Princetonian in which she bemoaned the democratic losses and wondered whether “the world had gone mad” and that “liberalism was dead.” But much in keeping with her developing pragmatic view of life, she ended her piece by wondering “where on earth I’ll be able to get a job next year,” a phrase which would do a Republican proud.

Second: As a law professor Elena Kagan specialized in writing about the First Amendment and about presidential power. She hasn’t written all that much, but she’s written enough so that any senator who cares to take the time to study her articles can get a decent impression of where she stands on these issues. Most law professors think she’s pretty smart and that the articles are good. If anything is surprising about her views it is that they often seem to be more similar to those of conservative justices like Scalia, than to the views of Justice Stevens whom she is replacing.

Third: Kagan was one of the most successful deans at Harvard Law School in decades. When Kagan was appointed dean, Harvard resembled a snake pit in which politics was the source of endless backbiting, constant faculty turnover and the inability of the school to move forward. Kagan actually got the faculty to talk to each other again and was able to hire two white male conservatives to the faculty. Such an act is hardly the act of a committed socialist.

Four: Several senators have raised the objection that Solicitor General Kagan has no judicial experience. True. However, being a Supreme Court Justice is unlike serving as a judge on any other court. In effect, no one has the experience to be an associate justice of the Supreme Court of the United States. But, more importantly, this notion that prior judicial experience is necessary ignores history. Chief Justice Earl Warren joined the court after being governor of California. Chief Justice William Rehnquist was a lawyer in private practice when he was nominated.

Even more interesting, many of the senators who now oppose Kagan’s nomination because of her lack of judicial experience, only a few years ago supported the nomination of Harriet Meiers based on her lack of judicial experience. You can’t have it both ways.

— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World. He also writes The Grumpy Professor blog which can be found at www2.ljworld.com/weblogs/grumpy-professor/.


Use the comment form below to begin a discussion about this content.

Commenting has been disabled for this item.