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Kagan and the great unknown

Guest Blogger

In his new book, “The Living Constitution,” published this month by Oxford University press, David A. Strauss argues that the Constitution’s meaning is not fixed, as conservative “originalists” such as Antonin Scalia, Clarence Thomas and Robert Bork believe it to be. Instead, the Consitution is a living document that provides for constant incremental social change – a process that does no harm to the original conception of the Founding Fathers. Strauss, one of the nation's leading constitutional law scholars, is a law professor at the University of Chicago. He has served as Special Counsel to the United States Senate Judiciary Committee and Assistant Solicitor General of the United States, and has argued 18 cases before the Supreme Court. Here, he assesses the nomination of Elena Kagan to the Court and finds that today’s issues on which she is judged may not be the most important ones in a potentially long tenure.

By David A. Strauss

A lot of the discussion about Elena Kagan’s nomination to the Supreme Court consists of speculation about where she’ll fit on the political spectrum with which we are all too familiar. Will she be a dramatic new voice on the left? (Some conservatives do not want her to be confirmed because they’re afraid she will be; some liberals are disappointed because they’re afraid she won’t be.) Will she be a cautious centrist, who will actually move the Court to the right, compared to her predecessor, Justice John Paul Stevens? Will she be a cagey operative, able to sway the “swing Justice,” Anthony Kennedy? And what do we make of the fact that she does not seem to have carved out a clear ideological profile so far in her career?

There’s a place for this kind of speculation, but it risks ignoring one of the most important lessons from the history of the Supreme Court: the issues that mean so much when a Justice is appointed often fade from view, and others take their place. If Kagan is confirmed, she is likely to serve on the Supreme Court for a generation. There is no reason to think that the issues that preoccupy us today—abortion, affirmative action, gun rights—will be the issues that determine her place in history. And we can only guess what issues might be flashpoints on the Supreme Court decades from now.

We were just reminded of this lesson by a decision of the U.S. Court of Appeals for the District of Columbia, a court just below the Supreme Court. On Friday, a three-judge panel of that court ruled unanimously that people being held at Bagram Air Force Base, in Afghanistan, did not have the right to challenge their detention in court.

Before September 11, when most of the current justices were appointed, issues like these—about the power of the president over individual liberty in a situation that is neither peace time nor a traditional war—were nowhere on the Supreme Court’s radar screen. But in the last few years, these issues have been front and center, and they are likely to continue to be as long as international terrorist networks threaten the United States.

There is a lot of partisan rhetoric about these issues, but the fact is that these questions scramble our accustomed political alignments. It certainly looks like the court upheld a policy that the Bush Administration would have supported.

But in fact it was the Obama administration’s position—put forward by, among others, Solicitor General Kagan—that the court accepted. The judge who wrote the decision was one of the court’s more conservative members, but he was joined by two of the court’s most liberal judges. And that decision by the court of appeals overturned a decision by a highly respected district court judge, who had ruled in favor of the Bagram detainees—a district court judge appointed by George W. Bush.

What this tells us is that, rather than trying to place Kagan on a spectrum from left to right, we should be thinking about whether she has the background and ability to address complex issues that may just be emerging or may still be over the horizon—issues that call for good judgment and common sense, rather than reflex adherence to the liberal or conservative position.

On that question, I can’t pretend to be impartial—I have known Kagan for almost 20 years, and I, like many others, admire her greatly. But her experience in the Clinton White House and as dean of Harvard Law School—jobs that require institutional savvy, good judgment, and an ability to work with people of differing views—might count for more than any guesses about her ideological propensities.

By Steven E. Levingston  |  May 25, 2010; 5:30 AM ET
Categories:  Guest Blogger  | Tags: constitution originalists, issues of supreme court nominee, kagan nomination  
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