Later this morning, President Obama will announce that he has selected Elena Kagan to replace John Paul Stevens on the Supreme Court:
WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.
After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.
In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.
That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.
Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.
Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.
Interestingly, some of the most negative immediate reaction to the pick is coming from the left.
Back on April 13th, Glenn Greenwald expressed concern about her stance on civil liberties and Executive power issues:
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post‘s Ruth Marcus predicted: “The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.” Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by “the Right,” I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
And Paul Campos raises the spectre of Harriet Meirs:
Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)
Kagan’s handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president’s power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations. (Of course cynics have noted that today Supreme Court nominees are often better off not having an extensive “paper trail” regarding their views on controversial legal issues. Who would have guessed it would be possible to retain this virtue while obtaining tenure at two of the nation’s top law schools?)
Brian Kirwin makes the same argument from the right:
shouldn’t a Supreme Court Justice really have been a judge somewhere? Sometime? Shouldn’t a Justice make a decision tougher than white or red wine before a lifetime appointment to the highest court in the land?
Shouldn’t we have some hint of judicial temperament, application of law, and constitutional view other than what they won’t say under oath in a Senate confirmation?
All we’re left with is she’s unmarried, has no children, and attacked the military’s policy on gays by barring military recruiters from Harvard.
Elections can be won by anybody. Lifetime judicial appointments to the Supreme Court shouldn’t go to rookies who never served a day in their lives on the bench.
Of course, the Constitution does not require judicial experience, it doesn’t even require that a nominee be an attorney, and, as I noted over at Outside the Beltway, there are plenty of examples from history of Justices without judicial experience who’ve gone on to have distinguished careers.
Nonetheless, I expect that this is an issue the right will jump on rather quickly, along with the controversy over military recuiters that erupted while she was at Harvard and, unfortunately, the rumors about her sexuality. In the post-Bork era, that’s all on the table, and this is an election year.
Hold on to your hats.