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The advantage of Elena Kagan

Last May, when President Obama was considering his first Supreme Court nomination that eventually went to Justice Sonia Sotomayor, I made the case for Elena Kagan. I see no reason to change what I wrote then. She's just as smart as she was, even more experienced and still has the right temperament.

I would add only that I think she, like one of the runners-up, Merrick Garland -- I still hope there is a place for him on the court -- is well-placed to fight the necessary battle right now, which is against the rise of conservative judicial activism. I've tried to make this case as often as I could, most recently at the end of April when I wrote in my column: "Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."

Precisely because Kagan is not seen as an ideologue and has a long history of cordial and thoughtful intellectual and personal relationships with those to her right, she is the kind of person who can make the necessary case for judicial restraint. What some of my friends on the left might see as a disadvantage -- they were looking for more of a fighting liberal this time -- I see as a potential advantage for Kagan, given what I see as the central task for judicial progressives now. My hunch is that while some on the right will fight her nomination, she is likely to go through pretty easily. And she should.

From my previous Kagan post:

Kagan strikes me as the obvious choice because Obama is interested in avoiding a major battle and does not want a nomination to get hung up on vetting. (The administration has had enough of such problems.) Kagan was just vetted for the solicitor general’s job, and 61 senators have already cast a vote to confirm her. It will be difficult (though admittedly not impossible) for a senator who voted yes the first time to vote no on her court nomination. Since Kagan has long been mentioned as a possible or even probable Supreme Court choice, my hunch is that she drew 31 “no” votes from Republicans because they didn’t want to be caught in that bind. Significantly, seven Republican senators voted to confirm Kagan anyway: Susan Collins (Maine), Tom Coburn (Okla.), Judd Gregg (N.H.), Orrin Hatch (Utah), Jon Kyl (Ariz.), Dick Lugar (Ind.) and Olympia Snowe (Maine). That’s a very good group to have favorably disposed toward you at the outset.

Kagan is young (she just turned 49) and is universally seen as very smart -- she, too, graduated summa cum laude from Princeton, got a master's from Oxford and then graduated from Harvard Law School, where she was an editor of the Law Review. She taught at Harvard and the University of Chicago, worked in the Clinton White House and was dean of the Harvard Law School. That last post could serve her well with conservatives because she was regarded as fair-minded by her conservative colleagues. She made a sometimes fractious law school far more collegial. She thus fits a highly favored Obama category: She’s a progressive who works well with those on the other side of politics. That would also help make her a persuasive member of the court in building progressive majorities -- and in tempering conservative majorities.

The obvious downside of a Kagan pick is that she just took over as solicitor general, and Obama would need to find someone else. On the other hand, the court choice is politically more important to Obama, and Kagan solves a lot of problems at once. Getting a new solicitor general confirmed should not be a big problem.

Read the whole post.

By E.J. Dionne  | May 10, 2010; 10:44 AM ET
Categories:  Dionne  | Tags:  E.J. Dionne  
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Next: Two cheers for Obama's nomination of Elena Kagan


Well, we figure that you would like another nut case from the Brady Bunch, but when THAT becomes public knowledge, she will be about as acceptable to the general public as a member of PETA or the American Nazi Party.

Posted by: mibrooks27 | May 10, 2010 11:30 AM | Report abuse

I don't think that Senator Hatch will have any difficulty voting against her. All he has to say is that "while the Pres gets his pick to be S/G, a lifetime appointment to the bench is a different issue." It won't even sound too hypocritical.

Posted by: cyberfool | May 10, 2010 11:49 AM | Report abuse

"Obama is interested ... does not want a nomination to get hung up on vetting." Yeah, don't want pesky facts to come out like when she sought to disallow the Military recruitment on sacred Harvard grounds. Moreover, when you toss out accusations that the right often attempts to overturn "decisions made by democratically elected bodies," how about a few examples? As when the voters of Calif. voted against gay marriage and the left threw out the decision? Or, when the Supreme court voted against individual rights and allowed eminent domain for a private developer in the public interest?

Posted by: My_View | May 10, 2010 11:57 AM | Report abuse

"As when the voters of Calif. voted against gay marriage and the left threw out the decision?"

Huh? The California Supreme Court upheld Prop.8.

"Or, when the Supreme court voted against individual rights and allowed eminent domain for a private developer in the public interest?

Sounds like a corporatist Roberts kind of decision to me.

Posted by: howie14 | May 10, 2010 12:44 PM | Report abuse

Let's get the facts straight. She did try to block military recruiters from coming onto Harvard Campus. why the Military is blocks gays joining their ranks, reuining careers and lives of honorable soldiers who want to serve. So, in a sense, she was standing up as a voice against bigotry tha should frame what America is abouta, even against itts own military. She tried, perhaps in an unorthadox way that had little chance of succeeeding, to take a stand for fairness in American culture. It is a pity that you see the "values of the military" above the "values of America". Manyu of our allies, including Isreal, Australia, Britian, Canada allow gays to serve with honor and she was vocal about not letting our own military (IE, congresional leaders) get a pass under the guise of "patriotism". Kudos for taking an honorable stand that really affects lives and careers.

Posted by: cadam72 | May 10, 2010 12:51 PM | Report abuse

My_View: you have the Elo (eminent domain) case backwards too. The liberal majority voted to uphold the legislative act (condemnation is a legislative act, in case you didn't know), rather than be activists and overturn it. As George Will noted, the conservatives who wanted to uphold individual rights would have been the activists using a constitutional argument to overturn a legislative decision. His point was that activism is a useless term. The court is supposed to be activist when the constitution requires it, and that Elo was wrongly decided for lack of activism, not too much. His article warned conservatives to be careful what they asked for.

Posted by: JoeT1 | May 10, 2010 1:04 PM | Report abuse

Political "middleground" is irrelevant here. Mrs. Kagan has not ever ever been a Judge. When Bush suggested his friend Harriet Myers everyone was quick to point out that she had never been a judge either and I certainly agreed. Some things are just not politics. She should not even be considered for this post. I don't think the Supreme Court of the United States should be Mrs. Kagan's first Judicial gig?

Posted by: star_key2 | May 10, 2010 1:10 PM | Report abuse

please don't put this intelligent well educated and experienced lady in the same sentence with the very inept,miers.
you judge the appointee by the person doing the appointing.bush mental lite weigh could only endorse the same.

Posted by: ninnafaye | May 10, 2010 1:36 PM | Report abuse

"As when the voters of Calif. voted against gay marriage and the left threw out the decision?"

Huh? The California Supreme Court upheld Prop.8.

Posted by: howie14


howie, get your facts straight (no pun intended). Prop 8 was in response to the California SC overturning Prop 22, which was a previous ballot initiative that made same sex marriages illegal in CA. In order to get around the CA SC overturning prop 22, prop 8 put it in the CA constitution that defined marriage in CA as only between a man and a woman. The OP was right, you were wrong. Sorry.

Posted by: rush_b_right | May 10, 2010 1:46 PM | Report abuse

If a closet mo like E.J. is for her, then I'm ag'in her. E.J. is never right on anything.

Posted by: whatup | May 10, 2010 1:49 PM | Report abuse

"...who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."
Isn't that the point of the Supreme Court? To overturn laws that are deemed unconstitutional? Otherwise why have a Supreme Court at all?

By the way there is a Democratic way to get around restrictions on the Constitution. It's called an Amendment and it takes a 2/3 vote. Do that and no Supreme Court can ever overturn it.

Posted by: BradG | May 10, 2010 3:32 PM | Report abuse

There is no advantage to Elena Kagan being selected as a Supreme Court Justice anymore than Barack Obama should have been elected president. Architects design homes they don't build them. Medical books are written by technical writers, they don't perfomr surgery. You don't appoint someone who has never been a judge to.......the Supreme Court. You don't elect a president who was a community organizer. I guess experience just doesn't matter.

Posted by: tdressler | May 10, 2010 3:52 PM | Report abuse

You're a ripper, Mr. Dionne. Calling Ms. Kagan "non-ideological" would be like calling the Washington Post "trusted", "non-partisan" or "newsworthy".

Put down the crack pipe. Who do you think you are fooling any more? Did the Newsweek debacle provide you with no lesson in the value of at least being honest and reporting real news?

What's wrong, Mr. Dionne? Did you not get invited to sit at the feet of the Messiah and cover the Regime for the State Media Collective?

Maybe it goes deeper... Are you looking for a job because the "media bailout" isn't going to happen and now it looks like you need to produce something the market values and it's not looking good there for job security?

Man, talk about sucking at pushing the propaganda.

What's next? Her hidden pro-gay marriage credentials on constitutional law issues?

Look in the mirror, Mr. Dionne. You won't have to look hard to realize who you really are and why you couldn't make it in the real world. You're a loser pushing a retarded liberal agenda that has failed. It's failed to deliver the prosperity it has promised to Black America for 45 years; it's failed to deliver equality for women (they had to do it themselves) and now you can't make it work for our Dear Leader's socialist agenda.

Dude, why not emigrate to Cuba and work for the Worker's Daily? At least being a shill there comes with some kind of reward and you don't have to worry about people like me who can point out what an embarrassment you are to the concept of a "free press" and journalism.

Posted by: rainmaker1145 | May 10, 2010 4:00 PM | Report abuse

It is a shame that the Bush addition to the court, in the form of Chief Justice Roberts, was no so centerist. Maybe we would see more sensible decisions than the garbage being dealt by his court.

Posted by: ronjeske | May 10, 2010 4:01 PM | Report abuse

Let's get the facts straight. She did try to block military recruiters from coming onto Harvard Campus. why the Military is blocks gays joining their ranks, reuining careers and lives of honorable soldiers who want to serve.


The military isn't blocking anything. Congress and the President formulate the military's gay policy, and professors know it. Many universities blocking military recruitment has more to do about academia's loathing of the armed forces than any protest about discrimination.

Posted by: bbface21 | May 10, 2010 4:08 PM | Report abuse

Se what people are saying about Kagan here:


Posted by: tncdel | May 10, 2010 4:17 PM | Report abuse

It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as school integration...
Yeah Conservative judges are stopping the practice of LEGAL discrimmination against Whites!!! That's not judicial activism.. that's upholding the Constitution!!!

Posted by: sovine08 | May 10, 2010 4:32 PM | Report abuse

Well educated and experienced. But she is an ideologue on all things anti-Christian, pro-gay, pro-abortion. In any other federal post, I wouldn't have a problem, but certainly not SCOTUS; American cultural norms are at stake, even though the radical left has done everything in its power to destroy them. She should recuse herself from any issues that promote the radical left agenda, as we are still a center-right country.

Posted by: apberusdisvet | May 10, 2010 4:45 PM | Report abuse

As a respected academic in the legal field, including Dean of the Harvard Law School, one would expect that Kagan has an extensive paper trail of legal opinions about the law. Not case rulings like a judge, but philosophical perspectives that will illuminate her judicial philosophy.

Much like a previous academic, Robert Bork.

We'll see if she is able to explain or defend her voluminous writings to the Senate Judiciary Committee, much as Judge Bork was content to do.

Posted by: burgoonm1 | May 10, 2010 4:48 PM | Report abuse

Dionne argues that 61 Senators that voted last year to confirm Ms. Kagan as solicitor general would find it difficult to vote no on her Supreme Court nomination.

Does Mr. Dionne understand that the first was a temporary appointment, and the second is LIFETIME appointment? The first calls for a strong legal advocate to make persuasive presentations to the Court, the second requires a different toolset.

I suggest that great judges are not simply great lawyers that have moved to the other side of the bench. Several Senators have already suggested that an appointment to the Supreme Court is entirely different from any other Presidential nominee to a temporary post, and deserves a different level of scrutiny. True enough.

Posted by: burgoonm1 | May 10, 2010 5:03 PM | Report abuse

Since the gay issue has been raised and widely circulated, I believe she should be asked if she is gay when she appears before the Senate for confirmation.

That's my opinion.

Posted by: MyOpinionCounts | May 10, 2010 5:12 PM | Report abuse

star_key2 - Bush's gal-pal was not opposed because she was never a judge but because she was universally unqualified and additionally associated with a number of shady doings in the Bush administration - I mean shadier than usual.

Kagan's legal capability would be very hard to argue against.

And, while we are at it - Rehnquist had no prior experience as a judge and the current Chief Justice had only 2 years prior to his elevation.

If it is good for the goose it is good for the gander.

Posted by: TOMMYBASEBALL | May 10, 2010 5:27 PM | Report abuse

The comments on this post from those who think that Kegan not having previously been a judge somehow should disqualify her seem to know very little about what being a Supreme Court justice entails. It isn't about "calling balls and strikes" in the trial of a lawsuit. It's about as "academic" a pursuit as there is. Earl Warren had never been a judge. On the other side, neither had William Rehnquist. Clarence Thomas, another darling of the right wing, spent all of a year on the D.C. Circuit Court of Appeals (after his, um, "distinguished" tenure at EEOC).

You hear 80-100 oral arguments a year. Clarence Thomas has proved that you don't even need to ask the advocates questions during same. The rest of your time is spent writing the few opinions that are assigned to you and those that you feel strongly enough to write a seperate concurrence/dissent. Your clerks, the brightest legal minds to come out of the nation's elite law schools, do your researching for you. All you do is decide what the Constitution's application to a given, undisputed set of facts is. If that ain't "ivory tower", there is no such thing. It's quite a bit different than ruling on mundane evidentiary objections or whether or not a question to a witness is argumentative.

Some of the finest Supreme Court justices we've had weren't judges. If the names Jay, Marshall, Chase, Brandeis, Frankfurter, Douglas, Jackson, etc. mean anything to you, then you know what I'm talking about. If they don't, then--quite frankly--you don't know what YOU'RE talking about.

Posted by: pcpatterson | May 10, 2010 6:13 PM | Report abuse

BTW, to the president, covering up for a couple fellow liberal travelers is just alright by him.

This Kagen issue will be dismissed amid the cries of sexism, hatred, and racism. I am not sure why racism will be claimed, but most issues that liberals disagree about, they start calling the messenger of the message they cannot argue with, a racist. So I figure that anyone who points out problems with Kagen will be called the same three things that always used. It speaks poorly of her, that she had precedent, solid evidence, and a path for an equitable resolution, but she chose to depart from the norm and exonerate the fellow travelers who plagiarized, Tribe and Ogletree.

Posted by: thelaw1 | May 10, 2010 6:23 PM | Report abuse

It's going to be hilarious watching her crawfish away from her 1995 statement that the Senate should "Bork" EVERY nominee, and ANY nominee who doesn't answer fully and completely is making a sham of the confirmation process. I can't wait to see the massive rhetorical dodge she tries to use to get herself out of a jam that she herself made.
Good times....

Posted by: OttoDog | May 10, 2010 7:06 PM | Report abuse

SCOTUS: White Protestant Women need not apply?

Posted by: maxtel1910 | May 10, 2010 7:06 PM | Report abuse

The issue isn't only about Kagan having never been a judge - until the Solicitor General appointment, she'd never even practiced LAW!
Six cases argued before the SCOTUS (during which she was repeatedly chastised for poor arugumentation and procedural violations, as well as bad adherence to court protocol) do not constitute a career as a practicing attorney, much less a judge. The other "non-judge" justices thrown up to validate this pick, by and large, had at LEAST practiced as attorneys for some time.

Posted by: OttoDog | May 10, 2010 7:11 PM | Report abuse

E.J. is a most perfect "inverse compass" of the wisest of paths.

Posted by: OttoDog | May 10, 2010 8:19 PM | Report abuse

ninnafaye posted that:
" judge the appointee by the person doing the appointing.bush mental lite weight could only endorse the same."

With all due respect, ARE YOU INSANE!? Let us hope that the Senate, in their capacity to provide advice and consent, judge the qualifications of the NOMINEE, not the nominator. I agree that Harriet Myers was not appropriately qualified for the nomination, but the withdrawal was due to her level of qualification for the Court, not Bush's successful re-election (you figure that one out).

Even if you do not agree with his rulings, the quality of John Roberts on the bench should remove all doubt about the his nomination. Thank God you are not in public office (I hope). How about we stay on topic and talk about the qualities of THIS NOMINEE?

Posted by: burgoonm1 | May 10, 2010 9:09 PM | Report abuse

Finally the current D.C./MSM lingo is clear to me:

"Postpartisan" and "cordial conversation" actually mean "detent" when the context is liberal overreach and a populist, conservative backlash against the same (e.g. the Tea Party movement).

Here's the game: Once the liberals realize that they have gone way too far and must pay the political price, their best move is to lull the opposition and public into detent. With detent the liberals hope to preserve the gains they've made until the opposition - guaranteed to be stupid, greedy and incontinent while in power - loses the people's favor and are thrown out of office.

Applying this insight to Ms. Kagan's nomination to the supreme court, Pres. Obama & the liberals hope to lull Justice Kennedy and the conservative block into a status quo preserving judicial morass until such time as the liberals can stack the court in their favor. This is a long term strategy, quite brilliant and just might succeed.

Posted by: Lavaux | May 10, 2010 11:34 PM | Report abuse

her main advantage is being the Mother of Austin Powers.

Posted by: Obama_TRAITOR_in_Chief | May 10, 2010 11:57 PM | Report abuse

She looks like Jon Lovitz. That is a plus in my book.

Posted by: catotheelder1 | May 10, 2010 11:58 PM | Report abuse

she will be the third jew on the supreme court, that is 3 too many,if you have any knowledge of jewsih history then you would be realing in terror at all the positions they hold in this country,instead most are lulled insensible by the jewish owned press,television,movies,radio,publishing houses,magazines, america is a ZOG(zionist occupied government) government

Posted by: xtiml | May 11, 2010 3:32 AM | Report abuse

"Or, when the Supreme court voted against individual rights and allowed eminent domain for a private developer in the public interest?

That is an example. A democratically elected body voted to use eminent domain in that case. The conservative members of the court dissented from allowing that "takings" based on their interpretation of "public good". Thus, their dissent was judicial activism as they wished to overturn law based on their interpretation of the constitution. Conservatives are overwhelmingly more apt to do this.

Posted by: sperrett1 | May 12, 2010 7:06 AM | Report abuse

Last September this "wise" Solicitor General testified before the Supreme Court regarding what the government can censor. In response to a question by Justice Ginsberg, Kagan actually said that the government, under bill 441B could actually censor video, print, pamphlets, and even books. Kagan did follow that up and said that she believed that if the gov't. did censor a book, it would have a good chance to be overturned. Kagan lost her pleadings in this case, thank goodness. But if she is confirmed, her idiotic policy regarding censorship would have a hearing from inside the SCOTUS -- and that would be a terrible shame and danger. This is no "middle of the road" person. She is an extremely far left winger. That's proved by the fact that Obama nominated her. Enough said. Also, Dionne will be looking for real work soon and he will find it hard to get a job bowing and scraping at the feet of Obama and his left-wing henchmen.

Posted by: RonKH | May 12, 2010 7:05 PM | Report abuse

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