11 May 2010

Kagan reaction

Like my reaction to President Obama's Sotomayor pick, I had little or no initial reaction to his pick of Elena Kagan to replace John Paul Stevens.

I've changed my mind.

Sotomayor had a strikingly similar resume to Sam Alito -- a 15-year tenure as an appeals court judge, with really one case (Alito's was the 1992 Casey abortion decision in which he dissented at the appeals level and was struck down by a plurality of the High Court; Sotomayor's was the recent affirmative action/reverse discrimination decision on which she was reversed unanimously) sullying what was otherwise an impressive, thoughtful career on the bench. Both Sotomayor and Alito were derided as extremist shills by the other side, a charge that was true in neither case. In actuality, both were eminently qualified for the Supreme Court. To say either is outside the mainstream of American thought was absurd.

Kagan is different. She seems like a nice woman and an able administrator, but one look at her scant record brings Harriet Miers to mind immediately.

She doesn't have prior judicial experience, which isn't itself a disqualification -- Ted Olson didn't, and was eminently qualified anyway (he was passed over for first Roberts and then Alito). But unlike Olson (and former Chief Justice Rehnquist, who was the last appointee without bench experience) her courtroom resume is paper-thin. She has argued a grand total of 6 cases to the Supreme Court as the administration's solicitor general. Before that, she was dean of the Harvard Law School, served in the Clinton White House Counsel's office (coincidentally, the office Miers ran under Bush from 2005 forward) and was a colleague of Obama's at the University of Chicago. It appears she's not much of a litigator.

Additionally, it doesn't appear that she's given much if any thought to any constitutional questions of any import. She has written a total of five scholarly articles in her career, most of which dealt with technical/procedural matters. After publicly decrying judicial appointees for not making their views clear during the appointment process, this is a woman who has clearly and carefully avoided creating any sort of a paper trail. Much like David Souter in 1990, Kagan is a complete blank slate. The administration has touted her academic record as her primary credential for the Court, but she really doesn't have much of a record. She is much more an administrator than a scholar.

This isn't to say she'll be a bad justice. It seems that she possesses many admirable qualities -- intelligence, thoughtfulness, judiciousness and a friendliness toward those with whom she disagrees (she and Justice Scalia are friends). These are all necessary qualities for a judge at any level. But as many have noted, the administration is asking Americans to trust its judgment, much like President Bush did when nominating Miers in 2005. Frankly, that's insulting coming from a president whose approval ratings have plummeted at a historical rate and who has backtracked on virtually everything he originally campaigned for.

Harriet Miers was both nominated by the administration and then opposed by virtually everyone in Washington because she was a Bush crony. The same ties that we saw five years ago are there now.

Obama picked Kagan because he is trying to avoid a fight -- because she was approved as solicitor general a year ago, he must be figuring that the Democrats won't break ranks now. But I'm trying to figure out what Kagan has actually done to earn the nomination.

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