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He was the liberal lion on the Supreme Court. And when John Paul Stevens resigned, liberals like me demanded that President Obama name another proud, unabashed, full-throated liberal to take his place: the Antonin Scalia of the left. He didn’t. He named middle-of-the-roader Elena Kagan, instead.
Which should come as no surprise. Not since Thurgood Marshall in 1967 has an openly liberal candidate been nominated to the nation’s highest court. Since then, nominations have followed a predictable pattern. Republican presidents boldly name the most conservative justices they can find: like Scalia, John Roberts, Clarence Thomas and Samuel Alito. Democratic presidents timidly name the most centrist candidates they can find, like Sonia Sotomayor and Elena Kagan, in the hope they will grow up to become liberals.
For those on the left, it’s a maddening practice that even Kagan herself complained about 15 years ago in the University of Chicago Law Review: “Herein lies one of the mysteries of modern confirmation politics: given that the Republican Party has an ambitious judicial agenda and the Democratic Party has none, why is the former labeled the party of judicial restraint and the latter the party of judicial activism?”
Kagan is no flaming liberal. True, among the little we know about her positions on important issues of the day, we know she early on opposed the Pentagon’s policy of “don’t ask, don’t tell.” But we also know she approved the indefinite detention of terrorist suspects in Guantanamo, supports the Bush-Cheney doctrine of expanded executive power and has argued that the Constitution offers same-sex couples no right to marry. On that last issue alone, she’s less liberal than Laura Bush and hardly qualifies for membership in the ACLU.
All of which is driving Republicans crazy. They believe they must come out strongly against Elena Kagan, simply because Barack Obama is for her. But her lack of a distinct liberal profile leaves them little to build a case on. So they’ve come up with two lame lines of attack, instead.
First, they’ve attacked her lack of previous service on the bench. Sen. Mitch McConnell branded Kagan “the least qualified, in terms of judicial experience,” of any nominee in the last 38 years. “The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training,” warned the Republican leader.
How dumb does he think we are? What McConnell did not add is that the last nominee without prior judicial experience, 38 years ago, was conservative darling William Rehnquist. Like Kagan, Rehnquist didn’t come from what lawyers call “the judicial monastery.” And neither did some of the greatest minds who ever served on the court, including John Marshall, Earl Warren, Louis Brandeis and Felix Frankfurter.
Republican criticism of Kagan for her lack of judicial experience is especially galling given that in June 1999 her nomination by President Clinton to the U.S. Court of Appeals was never brought up for a vote by Senate Republicans. What do you call people who denied her the opportunity to be a judge yet today condemn her for never serving as a judge? Hypocrites!
Republicans also accuse Kagan of being anti-military, and indeed anti-American, for blocking the military from recruiting on campus during her tenure as dean of Harvard Law School. This time, they simply have their facts wrong.
Yes, as dean, she continued an existing policy that recruiters could not use resources of the Office of Career Services because of the Pentagon’s discriminatory “don’t ask, don’t tell” policy. But, with her blessing, military recruitment continued successfully at Harvard Law, under the auspices of the Harvard Law School Veterans Association.
In the end, liberals have more reason to distrust Elena Kagan than conservatives. All we can glean from her scant paper trail from her university, Senate or White House days, is that she’s a pragmatic, somewhat enigmatic, moderate. It takes a leap of faith to believe that, given the freedom of a lifetime appointment, she’ll emerge as the Supreme Court’s new, intellectual powerhouse on the left.
Personally, I make that leap of faith based, not on her writings, but on her friends. As a young woman, Elena Kagan once worked with Rep. Elizabeth Holtzman, professor Laurence Tribe, Judge Abner Mikva and Justice Thurgood Marshall. That’s mighty good company for any liberal to keep. A good deal of their liberalism must have rubbed off on her. I sure hope so.