Peter Baker and Jeff Zeleny in NYT:
President Obama nominated 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.
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.
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.
Tom Goldstein at SCOTUSBlog:
Kagan is uniformly regarded as extremely smart, having risen to two of the most prestigious positions in all of law: dean of Harvard Law School and Solicitor General.
In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views. On a closely divided Supreme Court, that is an especially important skill.
Conservatives who she has dealt with respectfully (for example, Charles Fried and former Solicitors General to Republican Presidents) will likely come forward to rebut the claim that she is an extreme liberal.
She would also be only the fourth woman named to the Court in history, and President Obama would have named two. At age 50, she may serve for a quarter century or more, which would likely make her the President’s longest lasting legacy.
As with John Roberts, her service in a previous presidential Administration exposed her to a number of decisionmakers, who have confidence in her approach to legal questions.
The fact that she lacks a significant paper trail means that there is little basis on which to launch attacks against her, and no risk of a bruising Senate fight, much less a filibuster.
And finally, one point is often overlooked: Kagan had some experience on Capitol Hill and significant experience in the Executive Branch, not only as an attorney in the White House counsel’s office, but also as an important official dealing with domestic affairs. She has thus worked in the process of governing and does not merely come from what has recently been criticized (unfairly, in my view) as the “judicial monastery.”
Ed Whelan at NRO:
It’s now being widely reported that later this morning President Obama will announce his decision to nominate Elena Kagan to the Supreme Court. Drawing on my many previous posts, I offer some initial comments on a Kagan nomination:
1. I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill. But …
2. Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.
3. There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick. Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years—from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee—would seem to reflect what writer Christopher Caldwell describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America. In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy—and of her unfathomable remoteness from ordinary Americans.
4. Kagan’s record thus manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the broader benefits of judicial experience.
5. Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.” In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.
6. Kagan has argued that the Senate should carefully explore a nominee’s views on judicial philosophy generally and on hotly contested constitutional issues in particular. Her argument has special force for someone who has been so guarded about her own views. Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal: as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is dutybound to defend.
8. Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking. It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.
Paul Campos at The Daily Beast:
What basis will either the Senate or the American people have for deciding whether the 49-year-old Kagan should spend decades as one of the most powerful people in our government? Kagan has never been a judge, which makes it all the more imperative that her published work should provide us with plenty of information about what sort of a justice she would be. Yet in the course of nearly 20 years in legal academia she has written very little, and what she has written provides almost no clues to her beliefs regarding important legal issues, or her views more generally about how judges ought to go about interpreting the law.
Even more disturbingly, we have very little evidence about Kagan’s politics. Supporters and detractors have been reduced to searching through 30-year-old issues of the Princeton student newspaper to dig up political statements Kagan made as a teenager, since she has somehow managed to spend her entire professional career cycling between the highest levels of legal academia and the federal government without taking a public stand on almost any controversial issue.
Indeed, it’s no exaggeration to say that the only real basis we have for making any judgment about Kagan’s current political beliefs is that she has a lot of liberal friends in high places–most notably Bill Clinton and Barack Obama, who both hired her to work in their administrations. Now the naïve response to this is to claim that Kagan’s political beliefs don’t matter because it’s merely her job to interpret the law–to call balls and strikes rather than to invent the rules of the game, in Chief Justice John Roberts’ wildly disingenuous metaphor. (It will be interesting to see whether Kagan is willing to do anything other than utter empty platitudes at her own confirmation hearing, especially given that in a 1995 book review she pointed out, accurately enough, that such hearings have become “vapid and hollow charade,” because a nominee is not required to “reveal what kind of Justice she would make, by disclosing her views on important legal issues.”)
Grownups understand that a Supreme Court justice’s politics are by necessity a crucial factor in how he or she goes about interpreting the law, since difficult questions of legal interpretation are inherently political. Certainly conservatives understood this when they opposed the nomination of Harriet Miers: Their primary objection to her had nothing to do with whether she was “qualified” for the position, but rather with the fact that, just like Kagan, she had practically no public record. The argument for Miers came down to the claim that conservatives should simply trust George W. Bush to make these kinds of decisions. This is exactly the same argument that political progressives are now being asked to accept in regard to Kagan: that they should trust Barack Obama.
William Jacobson at Legal Insurrection;
In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.
In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):
1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.
a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.
While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.
Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.
Jeffrey Toobin at The New Yorker:
I should make a disclosure. I met Elena on our first day of law school at Harvard in the fall of 1983. We were introduced by a mutual friend, and we were assigned to the same section—the group of a hundred and forty or so students who took our first-year classes together. Elena and I and two other students (joined occasionally by others) formed a study group, and we worked together for the entire year. In our second and third years, we were on law review together. When she ran for president of the law review, I was a sort of unofficial campaign manager for her. She finished second.
Elena danced at our wedding in 1986. When my wife, Amy, and I bought our first apartment, Elena’s father was our lawyer; he had a small real estate law firm in New York. (He died in 1994.) When Elena’s mother died last year, I sat shiva with the family in the apartment where she grew up on the West Side.
We are old friends. So my initial reaction to her nomination is a simple one: happiness for her. As I cover her nomination, and, if she is confirmed (as she likely will be) her career on the Court, readers should know this history and decide what difference, if any, it makes. For starters, from now on, I’ll be calling her Kagan, not Elena.
So what’s she like? Smart, self-confident, funny. Even in law school, which was full of highly intelligent people (just ask them), Kagan stood out from the start as one with a formidable mind. She’s good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone. Almost three decades later, those qualities were much in evidence during her famously successful tenure as dean of Harvard Law School.
All of this may be interesting, but it’s largely beside the point for a Supreme Court Justice. The justices are not really managers of people, certainly not in comparison to the dean of a major law school. Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.
As it happens, this weekend I was finishing “The Bridge,” the new biography of Obama by David Remnick, our boss here at the magazine. Since Kagan’s nomination was imminent, I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone. Remnick’s Obama is very… careful. He takes no outlandish stands or unnecessary risks. He is an exquisite curator of his own career. All of this is true of Kagan as well.
But on the Court, Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.
One final thought about Kagan for now. As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That’s just how things work. They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick. In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court. Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan’s confirmation. Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives — as they proved several times late in Bush’s second term [Miers, immigration, Dubai Ports] — were willing to oppose their leader whey they disagreed). The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).
All that said, I’ve said everything I had to say about Kagan in the pre-nomination process in order to enable as informed a public discussion as possible, and am not going to endlessly repeat those criticisms now just for the sake of doing so. Perhaps the confirmation process, for once, will yield some valuable information about the nominee and we’ll acquire at least some insight into how she thinks and what her judicial values and methods will be. I’m willing to keep an open mind. NPR’s Nina Totenberg yesterday uncovered (or was provided) a relatively encouraging piece of evidence that no public commentators (including me) had previously discovered: a 2005 letter co-signed by Kagan which opposed a proposal by Lindsey Graham to strip “War on Terror” detainees of the right to habeas corpus on the ground that the proposal was a violation of core American principles (that provision was ultimately included in the Military Commissions Act and struck down in 2008 by a 5-4 Supreme Court as unconstitutional).
The most important point to note about Kagan now is the one highlighted this weekend by Talk Left’s Armando, as first reported by The Los Angeles Times: in 1995, Kagan condemned the Supreme Court confirmation process as “a vapid and hollow charade” and an “embarrassment,” arguing that Senators should “insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.” Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that’s especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything. She ought to be held to her own position and “reveal what kind of Justice she would make” and “disclose her views on important legal issues.” I’m certainly willing to listen if she does that and then make a rational assessment of her based on those answers. Anyone wanting to form a rational choice should demand that she do the same.
Adam Serwer at Tapped:
Nina Totenberg points to a 2005 letter that arguably holds more weight in revealing Elena Kagan‘s views of executive power than her brief exchange with Sen. Lindsey Graham during her confirmation hearing:
In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.”To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. ”
“When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”
The letter continues:
We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of noncitizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of prisoners in Guantanamo, Iraq and Afghanistan. The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.There are only four signatories, so it’s not as though Kagan would have gone unnoticed in a sea of other names. Stanford Law School Dean Larry Kramer, Dean of the Georgetown University Law Center T. Alexander Aleinikoff, and then-Yale Law School Dean Harold Koh.
This letter is not a record. To borrow Goldstein’s metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that — given her relative silence — she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.You also gotta wonder … given that much of the liberal criticism of Kagan has centered around this issue, why wasn’t the White House passing this letter around?
Bill Kristol at The Weekly Standard:
For me, the key obstacle to Elena Kagan’s confirmation is pt. 5 in Ed Whelan’s NRO post, which is also the question raised by Peter Berkowitz in these pages several years ago and by Peter Beinart just recently: Her hostility to the U.S. military.
Hostility? Isn’t that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions–embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court–and her words?
Consider these words in particular from her letters to “All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.
Notice, time and again: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”
But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.