It’s official: Solicitor General Elena Kagan is President Barack Obama’s second nominee to the US Supreme Court. Today on the Daily Beast, Peter Beinart revisits Kagan’s anti-military zealotry over “don’t ask, don’t tell”—unsurprisingly, it doesn’t bother him enough to oppose her confirmation (though he does offer an intriguing nugget about administration allies offering to help media outlets spin the story). Beast writer Paul Campos, on the other hand, condemns Kagan as “supremely unqualified,” claiming that her nomination “makes a mockery of” Obama’s pledge to transparency:
What basis will either the Senate or the American people have for deciding whether the 49-year-old Kagan should spend decades as one of the most powerful people in our government? Kagan has never been a judge, which makes it all the more imperative that her published work should provide us with plenty of information about what sort of a justice she would be. Yet in the course of nearly 20 years in legal academia she has written very little, and what she has written provides almost no clues to her beliefs regarding important legal issues, or her views more generally about how judges ought to go about interpreting the law.
Even more disturbingly, we have very little evidence about Kagan’s politics. Supporters and detractors have been reduced to searching through 30-year-old issues of the Princeton student newspaper to dig up political statements Kagan made as a teenager, since she has somehow managed to spend her entire professional career cycling between the highest levels of legal academia and the federal government without taking a public stand on almost any controversial issue.
In short, Kagan’s career represents rampant elitism–which is to say cronyism Ivy League-style–in its worst form. No one doubts she is smart, ambitious, hard-working, and well-liked by lots of influential people. In fact she’s so well-liked she’s gotten a series of jobs for which she was largely unqualified. She obtained tenure at two of America’s top universities, and became a dean at one of them, without producing anything resembling the kind of academic record normally required for such positions. (This circumstance seems particularly ironic given a dismal aspect of Harvard’s hiring practices during her term as dean. Thirty one of the school’s 32 tenure-track hires were white, and none were African American or Hispanic. Apparently no “qualified” minorities could be found). She was named Solicitor General—that is, the federal government’s top courtroom lawyer—without ever having appeared in a courtroom on behalf of a client. Now someone who has never been a judge, and, far more important, has taken almost no public positions on any issue relevant to being a judge, is on the verge of being put on the Supreme Court.
Ouch. Campos accurately likens this pick to George W. Bush’s nomination of Harriet Miers, which collapsed after conservatives rebelled against Miers’ lack of a substantive record. But we shouldn’t expect a similar rebellion from the Left this time around. Obama nominated her for many of the same reasons he nominated Sonia Sotomayor—he wanted a left-leaning judicial activist who would make the Supreme Court more diverse. And unlike when Republicans nominate justices, Democrat presidents and their left-wing base usually share the same aspirations and expectations: reliable left-wing judgment, heavy on the “empathy,” light on serious constitutional analysis.
Kagan indeed fits the bill: as the Wall Street Journal reports, “Mr. Obama said Ms. Kagan understood the law ‘not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.’” Earlier today, David Swindle called attention to the radical sympathies Kagan displayed during her time at Princeton University, and last month I opined on Recruiter-Gate. Michelle Malkin has much more, including her support for “greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House,” and her “whitewash” of liberal Harvard colleagues who were caught committing plagiarism. Americans United for Life has also taken a look at Kagan’s record, concluding that she can be expected to dogmatically support the “right” to abortion, including taxpayer funding for the procedure.
In short, Elena Kagan is a leftist’s dream. But for those of us who value good government and fidelity to the Constitution, her confirmation would be a nightmare.