Elena Kagan

President Obama yesterday nominated Solicitor General Elena Kagan to the Supreme Court opening created by the retirement of Justice John Paul Stevens. In announcing Kagan's nomination, Obama said:

Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament -- her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder. 

Said Kagan:

I have felt blessed to represent the United States before the Supreme Court, to walk into the highest Court in this country when it is deciding its most important cases, cases that have an impact on so many people’s lives.  And to represent the United States there is the most thrilling and the most humbling task a lawyer can perform.

The Solicitor General served as Dean of the Harvard Law School, Professor of Law at both Harvard and the University of Chicago, and Associate White House Counsel under Bill Clinton. She also clerked for Supreme Court Justice Thurgood Marshall.

The initial Republican opposition to Kagan is typically crass. It augments a whispering campaign about her sexuality with implied support for gay marriage and the implication that opposition to military recruiting at Harvard has something to do with her supposed lesbianism. (Harvard objected to campus recruiting on the basis the the Don't Ask/Don't Tell policy conflicted with an institutional commitment that barred discrimination on the basis of sexuality.)

In a convoluted and nearly incomprehensible argument, neocon gay blogger Andrew Sullivan tries to have it both ways. He appears to argue that, while Kagan's sexuality is irrelevant, senators ought to grill her on it anyway in the hopes of luring her out of a closet she may not be in, which would somehow be a victory for all concerned. And in any case, we had better be certain that if she is gay, it won't affect her decisions.

Does Sullivan think that a heterosexual judge would be predisposed to an anti-gay vote in a gay rights case? If the Senate questions a Supreme Court nominee based on the notion that there's something dark and hidden about an unmarried, 50-year old career woman, shouldn't that be standard for every nominee to any position? And is the broad category of gay or straight enough? Shouldn't they ask about habits (faithful or not, degree of promiscuity either way) and predilections? Any porn addiction (I guess that one has been covered, and it's o.k.)? What web sites is the nominee a member of or has ever been a member of? What web sites has the nominee even looked at? How old was he or she the first time they, you know? How often did they do it? How regularly did he or she have sex in college and law school? (If the content of school papers are fair game, why not sex lives?) Will he or she supply the names of each sexual partner they've ever had? Naturally, he or she should make public the results of AIDS/STD tests.

Another nagging worry, according to one comment, is whether her (presumed) homosexuality affects her judgment because -- and I kid you not -- "passion clouds reason." Now, no one would ever raise this issue in connection with a straight nominee, although perhaps they should: I speak as someone whose judgment has been clouded by rampant heterosexuality more than once.

Or, we could just not care ask and about something important.

The other Republican line of attack concerns a speech in which Kagan expressed sympathy for Thurgood Marshall's contention that the Constitution as originally conceived was "defective." The first African-American justice, Marshall, in a 1987 speech observing the bicentennial of the Constitution, inexplicably took issue with its Three-Fifths Compromise before articulating the classic liberal understanding of the law of the land:

We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making...

(The complete text of Marshall's marvelous speech is here.) If the thrust of the conservative attack on Kagan is to be sordid insinuations about her personal life and comparisons to Thurgood Marshall, then I say bring it on: It ennobles her and abases them.

Progressive reservations about Kagan appear to be little more than cherry picking. In an uncharacteristically flabby report for The Nation, John Nichols asserts that

[The national] conversation should begin with an honest admission that Kagan's record does not suggest that she will be as great, or as liberal, as Stevens.

The problem with this claim is obvious: When Gerald Ford nominated John Stevens, nothing about his record that he would become either liberal or great. So how can anyone make such a prediction about Kagan?

Nichols then takes a long time to get around to his next point, which has to do with doubts that Kagan will oppose Bush-like encroachments of executive power on the legislative branch. But literally every president in the history of the country has sought a free hand when conducting a war. The notion that because Solicitor-General Kagan argued for Barack Obama when he wanted to retain a couple of Bush war powers means that he and she envision a Bush/Cheney imperial presidency is ludicrous. Certainly, senators should question Kagan on her views of the separation of powers; they should question every nominee for the federal bench on that subject. But to start from the perspective that she's a closet monarchist seems out of line.

Nichols also quotes approvingly an assault on the supposed "paucity" of Kagan's legal scholarship. I'm not remotely qualified to render an informed opinion, but I do wonder how someone could attain Kagan's academic credentials without being a decent scholar. More to the point, I'd like someone to produce the study that correlates legal scholarship with excellence on the Supreme Court bench.

Finally, Nichols gives the back of his hand to "...the talk about social and even economic issues that may come before the court." Maybe these issues are not important to him, but they will be to rest of us: During Kagan's tenure the court may well review continued attempts to undermine Roe v. Wade, the new health care law, and suits brought to break up the banking and finance trusts that plague our economy and threaten our way of life.

The consensus appears to be that she'll move the court to the right because she can't possibly be as liberal as Stevens. That's unknown. But nothing about Elena Kagan's career suggests that she'll suddenly make common cause with John Roberts. You don't have to be John Paul Stevens to stand in opposition to Robertsism. It's Roberts and Samuel Alito and Clarence Thomas and Antonin Scalia who have moved the court to the right; it's them we must resist...

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R. I. P., Lena Horne: