Although Elena Kagan’s nomination to the Supreme Court was not a surprise to me it has left me feeling very unsatisfied. While it is true that Ms. Kagan may, in a few years, become one of my favorite justices I am not happy with the notion of supporting her simply because President Obama is asking progressives to do so. In many ways, progressives should be troubled by Kagan’s nomination. For starters, she has very little relevant legal experience. Until Obama appointed her to the post of solicitor general Ms. Kagan had never actually practiced law. She had spent her entire legal career as a clerk, political aide, professor and law school dean. Personally, I do not care where you taught or where you climbed to the position of dean (although in her case those are one in the same with where she went to law school); if your resume is nearly void of legal representation or decision making you cannot be considered qualified to serve on the Supreme Court. Actually, I wonder how someone who has never practiced law can make a good professor of law, but that’s a discussion for another day.
The argument being advanced by the administration and its apologists that Kagan’s nomination is a change because she comes from outside the judicial establishment does have a grain of truth, because Kagan’s background must force us to conclude that not only does she come from outside the “judicial monastery,” but she comes from outside the community of those who have ever really practiced law. Until Kagan was nearly 50 years old she never used her obvious legal talents to assist anyone in need or publish a piece that sought to advance the law. In my mind that tells us something about the mindset of Elena Kagan. Ms. Kagan is, obviously, someone who has never been willing to put herself out there. She has never accepted a real challenge. Instead, she has chosen to spend the vast majority of her adult life in the secure bubble of Harvard Law School. A lawyer’s choice never to take on positions that provide either ultimate accountability in the legal context or demonstrate some degree of opinion is disturbing. Even as solicitor general Ms. Kagan’s arguments were framed, to a large degree, by the objectives of the administration. Even in that position she was not accepting the challenge of arguing cases that she chose to bring because she supported the moral objectives behind them and/or relished the opportunity to advance legal theory.
When it comes to providing someone with a lifetime pass to impact all of our lives Americans must demand to know more about those being nominated than will be known about Ms. Kagan until she begins serving. Given her lack of relevant experience and her obvious tendency to avoid taking even a moderately controversial stand even Democrats must insist that Ms. Kagan be much more forthcoming during the confirmation process than recent nominees to the Court have been. Simply skating through, as Justice Sotomayor did, will not suffice when a nominee, like Ms. Kagan, has no record that can adequately be examined.
Personally, I believe that Ms. Kagan was chosen by President Obama because she is more centrist than progressives would like to believe. After all, progressives made the very same mistake with Obama himself. While lefties will trumpet Kagan’s involvement with efforts of law schools to fight against Don’t Ask Don’t Tell it is important to point out that the policy was in place before Ms. Kagan became Dean at Harvard Law School. Kagan was chosen because she is a friend of the president—not because her resume screams Supreme Court justice; in fact, it is unlikely that any other president would have even considered her for the job given her lack of relevant experience. This type of nepotism is frustrating and will provide Republicans with a reasonable argument against her nomination.
I have long supported the idea that we needed to bring diversity to the court. Unfortunately, I did not consider the possibility that a president’s idea of judicial diversity included someone who never practiced law. I guess my notion that experience practicing law is an important component to the resume of someone who is nominated for a seat on our nation’s highest court is not a notion shared by the president. But how many of you are willing to simply accept the president’s assurances as valid grounds for confirmation when the decisions made by Kagan will impact our lives long after the president has moved on?
Tags: America, Barack Obama, Elena Kagan, justice, law, politics, Supreme Court
