Elena Kagan is not Harriet Miers or David Souter
The New Republic seems to be keeping Dana Milbank's 1998 profile of Elana Kagan behind a paywall, but I read it on Nexis (Update: Here's a free version) and it's a good reminder that though Kagan's thin written record makes her relatively hard for the public to know, she's arguably better known to the people appointing her than any recent nominee. It's not just that she's served as Obama's solicitor general, but that she served on the Domestic Policy Council and in the White House Counsel's Office under Clinton, and then as a dean at Harvard while Larry Summers was leading the university.
Of course, that sounds like the same argument George W. Bush made about Harriet Miers. But it's not, really. Miers was a Bush loyalist, which made her personal politics extremely cloudy. Kagan has served multiple terms in Democratic White Houses, and her association with the Domestic Policy Council and Summers makes it pretty safe to say that she's on the technocratic center-left that's defined the last two Democratic administrations. She's a Democratic executive-branch staffer, not a loyalist, which makes less of a wild card.
So where it actually leaves you is pretty much where Glenn Greenwald says it leaves you: Deciding whether or not to trust establishment Democrats. But that said, I don't think there's much chance of Kagan being a Souter-esque surprise. She might be oddly canny among her friends, but it strains credulity to suggest that she would repeatedly serve in center-left White Houses if she wasn't interested in center-left policy, or that she'd have thrived if the people around her didn't feel they knew her positions well enough to trust her judgment.
Nominating Kagan for the court is a bit like Joe Biden naming his former chief of staff, Ted Kaufman, to replace him in the Senate. The choice is based on private knowledge rather than public knowledge, but it's not based on an absence of knowledge.
Photo credit: By Nikki Kahn/The Washington Post
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