The Stealth Nominee; Obama Picks Elena Kagan For Court

The Stealth Nominee

The Stealth Nominee; Obama Picks Elena Kagan For Court

President Obama recently nominated Elena 
Kagan to be the 112th justice on the U.S. Supreme Court and to replace retiring Justice John Paul Stevens. The nomination was met with mostly praise from Democrats and cautious skepticism from Republicans. While there is no emerging threat of a GOP filibuster over Obama’s pick for the Court, the Republicans promised a vigorous election-year debate on judicial philosophy. Most experts believe Kagan will face a relatively quick path to the bench. The stage is now set for summer hearings before the Senate Judicial Committee.

If confirmed, Kagan, 50, will also become the fourth woman ever to sit on the nation’s highest court and mark the first time three women have shared the bench at once.

Over the next several weeks, stories of her bio-graphy and speculation as to her political phil-osophy will fill the airwaves and newspapers as the nation watches while the process of picking a new member of the Supreme Court unfolds.

What we know about her already is that she is not the typical Supreme Court nominee. First, she has no judicial experience. Ironically, she was a law clerk for Supreme Court Justice Thurgood Marshall, who came to the Court with very little judicial experience. Justice Marshall nicknamed the 5-foot-3-inch Kagan “Shorty,” a nickname that has stuck. Neither does she have lengthy experience as a practicing lawyer, although what practice she does have has been significant.

Her legal practice has been a short stint in private practice in a D.C. law firm, and her approximately one year of experience as Solicitor General of the United States, a role which has brought her before the very Court to which she is now nominated on six occasions. She also spent five years in the Clinton administration as 
White House counsel.

Kagan particularly has a lot of experience in academia. She served on the faculties of the University of Chicago Law School and Harvard Law School. A graduate of Harvard Law in 1999, Kagan ultimately became a visiting professor at Harvard. In 2001, she was named a full professor. In 2003, she was the first woman to be named Dean of Harvard Law School.

The confirmation process is designed to draw out the political and judicial philosophy of the nominee. Part of the criticism of the Kagan nomination is that she has left so few footprints 
during her career. Evaluating how she may rule from the bench will be speculative at best. Kagan 
has published only a small amount of scholarly work. This leaves pundits on both the Right and Left wondering about this “stealth” can-
didate. Kagan’s lack of a public record makes her a 
very small target.

From 1995 to 1999, Kagan served as President Bill Clinton’s Associate White House Counsel 
and Deputy Assistant to the President for 
Domestic Policy and Deputy Director of the Domestic Policy Council. Some liberals are concerned that while serving in that position, Kagan co-authored a May 13, 1997 memo to President Clinton urging him to support a ban on late-term abortions. Liberals have also raised the issue of Kagan’s lack of diversity in her appointments while Dean of Harvard Law.

As for conservatives, there are also some Kagan 
positions which give them pause. As Dean of Harvard Law School, Kagan had to deal with the issue of compliance with the Solomon Amendment. Under the Solomon Amendment, universities receiving federal funding are required to 
allow the Armed Services to recruit on campus like other employers. Harvard Law School was one of many prominent law schools that chose to violate the Solomon Amendment, citing the military’s “don’t ask, don’t tell” policy. The Supreme Court ruled in a unanimous decision that the Solomon Amendment was constitutional.

This Week’s Question____________

Should the Senate confirm the appointment of Elena Kagan despite the dearth of a public 
record upon which to base their decision?

Left Opinion

Courting Kagan

By Bob Franken

It is appropriate they waited for Vice President Biden to be back in town before President Obama announced Elena Kagan as his nominee to replace Justice John Paul Stevens on the Supreme Court. This is, after all, a big deal. Besides, Kagan had been an advisor to then-
Senator Biden.

OK. She’s Ivy League and formerly Dean at Harvard Law. But let’s not hold that against her. Harvard Law graduate Barack Obama is not the first president to apparently believe that only the Ivies are worthy sources of justices, as evidenced by the fact that when she’s confirmed, SCOTUS will be All-Ivy-All-The-Time.

At least while she was deaning there, Kagan did try to keep military recruiters out as an objection to the “don’t ask, don’t tell” policy. The fact that conservatives will go bananas over that during Senate consideration will be fun to watch. She was also, as President Obama pointed out, a real consensus builder, someone with an appreciation for diverse views, described as having an openness to a broad array 
of viewpoints.

Kagan would become the youngest member of the court at age 50, which, as we all know, is the new 30. But this child prodigy has accumulated a distinguished fast-track record and not just the Harvard thing. She’s Solicitor General currently, often called the Supreme’s 
10th Justice.

She got off to one hell of a start, clerking for the titan Thurgood Marshall and she’s had various policy roles at high levels of the Clinton 
administration. Still, her critics are already charging she has a relatively thin resume and can be expected to hammer at that.

What does look good on a CV is an entry like “She plays well with others.” Kagan is one of those… and someone who can argue without fighting…who achieves compromise and most 
importantly, has a sense of humor. That alone sets her apart from most of the people in this city of sharp ambitions and dull people. She’s never been a judge…which can be construed as a good thing because every one of the other justices did come up through the judicial farm system. It’ll be good to have someone who didn’t.

Yeah yeah, I know: The polls say that people would prefer someone with judge experience, but why is that essential? At the lower bench levels one must follow the dictates from on high. Kagan and the gang are the on high…the dictators, not the dictatees.

Obviously the fact she’s a woman works in her favor. She’s already got a few firsts on her record: First female as Harvard Law Dean, ditto for the Solicitor General position. Assuming she gets past the opposition research and Senate posturing this summer, the 
Supreme Court will have three women members in October. The first time that’ll be.

Three of the nine…a full one third! Wowee Zow-
ee! What a milestone! Considering
that our population is roughly half female, it doesn’t break the robed ceiling but it is progress.

Back to her non-judge resume: It means she doesn’t have much of a judicial record for the Republicans to chastise. Of course her lack of writings about the various flash-point issues of the day will not only make the Right nervous, but will also concern those on the Left who dearly want one of their own to replace John Paul Stevens. In fact they worry that Kagan seems to come down on the side of government and presidential power and legal restraint far too much…just like her nominator President Obama does, to their consternation. Let us not forget though, you never know how a justice will veer. Stevens, the darling of Democrats, was chosen by a Republican, Gerald Ford. That’s what makes the Supreme Court such fun. You sometimes can’t predict what direction its members might wander. 
And these days, to get past their hearings, the prospects aren’t willing to give the slightest hints.

Not that everyone won’t try to get a glimmer. This summer it’s Elena Kagan up for the attempted dissection. As important and entertaining as it is, all of this raises a much more compelling question for President Obama: Is there any way someone can get Scalia-Thomas-Roberts-Alito-Kennedy to retire?

Bob Franken is a columnist for North Star National. Reprinted with permission from North Star National.


Kagan’s Nomination Is Vintage Obama: No Footprints

By David H. Landon

The retirement of Supreme Court Justice John Paul Stevens gave President Obama his second opportunity to nominate a justice to the Court. After considering all of the possible names throughout the land to fill the spot left by Stevens, who was the liberal leader of the Court, President Obama submitted the name of Elena Kagan, U.S. Solicitor General. And while Kagan’s name had been known to be on Obama’s short list, the choice is still somewhat surprising, at least on the surface. There were many possible nominees with deeper resumes and more experience than Kagan. However, with closer review of the decision, it can only be described as 
vintage Obama.

President Obama, who came to office by flying under the radar and vigorously opposed any attempts to define his philosophy, picked a kindred spirit. This is the same president who avoided taking a position on anything controversial as a U.S. senator at all costs, the same president who as an Illinois state senator voted “present” 130 times in his short career in the statehouse. The same president, who managed to conduct an 18-month presidential campaign without revealing to the American people that he would govern as a European-style Socialist, picked a nominee who shared his ability to pass through a career without leaving a philosophical footprint.

Kagan has left precious little of a paper trail by which we can anticipate what kind of justice she will become if she is confirmed. First, there is the obvious issue that she has never served as a judge on any level before being nominated to the highest court in the land. It’s not the first time that a lawyer with no judicial experience has been picked for the high court. In fact, of the 112 persons who have sat on the Supreme Court, 41 of them came to the court with no judicial experience. Of these 41, they had served as congressmen, senators, state and national attorneys general, governors, and simply were accomplished lawyers with years of private practice.

Thurgood Marshall, who Kagan clerked for, was also selected for the Supreme Court with having served only a few years on the U.S. Appellate Court. However, Justice Marshall had a law practice spanning decades during which he argued before the Supreme Court on 32 occasions. He won 29 of those arguments. One would be hard pressed to argue at the time of his appointment that Marshall was not prepared to sit on the bench that as an advocate he had so dominated. Kagan… not so much.

Further, Kagan doesn’t have judicial experience. In fact, she has very little real world experience as a practicing attorney. After a very short stop after law school with a D.C. law firm, Kagan returned to the world she knew best: academia. Her education involved a Princeton undergrad degree, followed by time at Oxford and then her J.D. at Harvard Law. It is mostly from the world of academia that Kagan has earned her bones, although she did spend four years as White House Counsel to Bill Clinton during his exciting second term in office. Still, she is best known from her time in the hallowed halls of academia as a professor of law and finally as the Dean of the Harvard Law School.

Kagan is an egghead, and I use that term with great affection since we need eggheads to fill our institutions of higher learning. However, a review of Kagan’s career in academia brings us to the second piece of the puzzle of “what is the judicial philosophy of Elena Kagan?” Kagan, in a very non-Paper Chase/Professor Charles W. Kingsfield Jr. fashion, has published very little during her years in academia. Unlike members of most law school faculties, Kagan has left very little in the terms of learned publications for us to review, including during her time as supervising editor of the Harvard Law Review.

We do have brief glimpses into what her philosophy might be. She attempted to keep military recruiters off of the Harvard Law School campus in violation of the Solomon Amendment and changed her position only after a 9-0 Supreme Court decision threatened to remove public funding from Harvard. Her decision was based on the fact that the military policy of “don’t ask, don’t tell” violated Harvard policies. She also wrote a position paper for the Clinton administration urging him to ban late-term abortions, which has not made her a favorite of the abortions rights crowd. Of most concern to many is Kagan’s belief that speech can be limited if it can be considered harmful. Really? It begs the question of harmful to whom? These and other questions will be presented to Kagan this summer in hearings conducted by the Senate Judiciary Committee where she will try very hard to not answer them.

Still, during Kagan’s confirmation as U.S. Solicitor General, we did learn one thing about her philosophy that gives me some encouragement. In response to a question by Senator Lindsey Graham (R-SC) she agreed that a captured enemy combatant could be held without trial for the duration of hostilities or the war. With the Obama administration attempting to Mirandize every captured Islamist radical, this was a refreshing departure. Perhaps she gets it that we are in a war.

Of this we can be certain: Barack Obama’s friend, Elena Kagan, may be a “stealth” nominee today, but upon confirmation she will be a certain vote for the liberal view of an activist court. Stealth no more, Kagan’s appointment to the high court will again remind us that elections in this country have consequences.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee.

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