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Elena Kagan, II

[Doug Mills/The New York Times]

Last night, in anticipation of Obama’s nomination of Elena Kagan to the Supreme Court this morning, I wrote expressing my disappointment. Three hours ago, Obama made the expected announcement. I’m still disappointed. Let me link to, and quote from, some blog posts this morning that help explain my disappointment.

1. Jeffrey Toobin, Supreme Court follower (and author of The Nine: Inside the Secret World of the Supreme Court), wrote in the New Yorker blog about Kagan, an old friend from Harvard Law School days.

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.

2. bmaz, at the emptywheel blog, explains why Elena Kagan Will Be The Most Unqualified Justice In History.

It is simply mind boggling Barack Obama and his coterie of supposedly enlightened, informed and experienced advisors would contemplate, much less fight tooth and nail for, an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan. They may be harsh words, but they are the absolute truth.

. . .

The narrative being pitched about Kagan is the most contrived I have ever heard on a Supreme Court nominee. She has little record of legal accomplishment in any area actually in the active legal profession (although she apparently is very good at schmoozing monied corporations and benefactors of the Ivy League elite). None. She had never even set foot into a courtroom on behalf of a client, much less as a judge on a case in controversy, prior to being named Solicitor General. Her resume of written work is about the equivalent of an aggressive law school student on the top of their school’s law review; maybe less.

Kagan’s record as Solicitor General is shaky, at best; she wrote a weak amicus brief in Mohawk Industries, was unfocused on her oral argument of Citizens United, stepped in deep manure during the oral argument in Holder v. HLP when she said the material support criminal charge should be applied to attorneys representing disadvantaged clients, and no less than the Supreme Court themselves, in an 8-1 decision in US v. Stevens, basically declared her briefing and argument in said case to be laughably ill conceived, wrongheaded and misguided. Kagan herself admits she is so inexperienced she is like a deer in headlights before the Supreme Court. This is the woman who is going to be the great liberal persuader? Please; what a patently absurd contention.

Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas. Don’t believe me? Take a look at Miers’ curriculum vitae and slate of authored works; then think about the emptiness of Kagan’s written work and nature of her service. Both are clearly accomplished women, but it is hard to see how Kagan is superior to Miers, and Miers was flamed universally across the political spectrum as being an absurd nominee. How can Elena Kagan now be seen as superior?

3. emptywheel suggests a look on the bright side. An excerpt:

  • If ever SCOTUS needs money, Elana Kagan is a great fundrasier!
  • Imagine how it’ll make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General.
  • Girls. Three of them. On SCOTUS. Just two more to go and we’ll have our fair share.
    Got a bright side to the Kagan nomination? Put it in comments.

4. Glenn Greenwald has been writing frequently and at length about Kagan for the last month. His latest is here.

5. The issue for me is not so much Kagan as Obama, and what her appointment signifies about his willingness to promote the change he (seemingly) promised. In this light, see also Andrew Sullivan’s comment this morning on the question of Kagan’s sexual orientation. Key passage:

[Obama] told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan’s possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be? . . .

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

Categories: Law, Politics, Today's News
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