Kagan: Few Clues on Future Views

By Kenneth Jost
Supreme Court Editor, CQ Press
     Elena Kagan appears on a path toward Senate confirmation as the next Supreme Court justice, but her ability to move the court in the direction that President Obama hopes for remains to be seen. Indeed, her first effort in that regard failed.
     In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
     Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
     Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
     Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
     In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
     If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to serve under Mikva as associate White House counsel during the Clinton administration.
     Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
     If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
     Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools on the issue by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
     Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.