It looks like Elena Kagan for SCOTUS – could shift court to the right
White House ‘insiders’ are reporting that an announcement on Obama’s choice for the Supreme Court will likely come on Monday and that Elena Kagan, current Solicitor General and past Dean of the Harvard Law School, will get the nod.
This may not be very good news for the nation’s progressives.
For a number of weeks now, Salon’s Glenn Greenwald has been making the case against Elena Kagan as the president’s nominee.
The heart of Greenwald’s argument revolves around the fact that Kagan stands as a very large question mark given her paucity of writing or comment on the big, legal issues of the day. And as she has never served a day on the bench, where she would have created a record of opinions, we are left with little knowledge as to how and what Kagan thinks and what she is likely to do on the Court.
What we do know is not particularly encouraging.
In 2001, while at Harvard Law, Dean Kagan authored a well-known law review article, entitled “Presidential Administration”, 114 Harv. L. Rev. 2245 (2001), revealing that she is a big fan of the Executive Branch. In the piece, Kagan defended and argued for the expansion of the powers of the presidency. Her beliefs, in this regard, not only lined her up with the more conservative elements on the Supreme Court but additionally gave great comfort to the Bush/Cheney legal loyalists who supported the unprecedented executive branch power grab that occurred during the eight years of the Bush Administration.
During Kagan’s Solicitor General confirmation hearings, she made very clear her belief 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.”
Again, this would tend to place her with the more conservative members of Congress who are anxious to curtail certain Constitutional rights in the name of fighting the war on terror.
Then there is Kagan’s dismal diversity record during her reign at Harvard Law, a time when Kagan increased the faculty by almost 50% yet hired remarkably few minority or female professors. While 32 of her hires were tenured, or tenure-track academics, only one was a minority while only seven were women.
Indeed, so questionable is the little we know of Kagan’s record, from a progressive’s point of view, that uber-conservative Bill Kristol actually endorsed her appointment in an April 11, 2010 appearance on “Fox News Sunday.”
So, why would Obama make this woman his choice?
For starters, it is clear that Kagan would have a considerably easier time making it through what would likely be a contentious Senate approval process were Obama to chose someone more aligned with progressive thought – someone like Judge Diane Wood. There is also no arguing that Kagan is known to have an extraordinary legal mind – one Obama believes will provide a balance to the other ‘big’ legal brain on the Court, Chief Justice Roberts.
Then there is the fact that she is relatively young – only 50 years old – which means Kagan is likely to hold her spot on the court for a long time, coupled with the fact that she has never been a judge which, according to the president, would bring some ‘diversity’ to the highest court of the land.
Of course, the fact that Kagan has revealed her strong bias towards presidential power would no doubt play as a positive to the president that is appointing her, one who expects to be around for a number of years to come.
While there is really no telling where Kagan will fall on key legal issues to come, what we know about her certainly indicates that she is far more likely than the Justice she is replacing to push the court to the right. When you consider that this appointment is to the very seat previously held by progressive stalwarts like Stevens, Justice William Douglas and Justice Brandeis, this simply does not feel right. This is the traditionally progressive seat on the Supreme Court and it seems far from clear that Elena Kagan will stand for the principles of legal interpretation brought by those who have filled this seat since 1916.
Is this really the legacy President Obama wants to leave behind?