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The Elena Kagan Enigma: What to think of New York Times’ Doubts?

Posted on June 30 2010 6:00 pm
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Elena Kagan, President Obama’s choice to succeed Justice John Paul Stevens on the Supreme Court, has been playing coy during her Senate confirmation hearings.   Contrary to her call in a 1995 article for judicial nominees to be more forthcoming about their views, she has been hiding behind the usual smokescreen of avoiding answering any questions that might even “provide some kind of hints” about her views on matters that might some day reach the Supreme Court.

The New York Times has expressed some concern about where Kagan stands on certain issues of concern to the progressive editorial board – which I take as a hopeful sign that Kagan may not be a left wing ideologue after all.

For example, the Times mentioned her signing, as Obama’s Solicitor General, what the Times characterized as

an unfortunate government brief supporting a statute that made it a crime to provide any form of expert advice, even legal briefs, to terrorist groups

Then again, we do not know if Kagan’s actions as Solicitor General truly represent her views or not.  Her decision as Harvard Law School dean to bar military recruiters from using the law school facilities, in protest over the “don’t ask, don’t tell” ban, appears to have violated federal law. She has not provided an adequate explanation for her decision.

Kagan also lacks any judicial experience – which may not be an entirely bad thing.

I met Kagan when she was serving as Harvard Law School’s dean. She is bright, articulate and a good listener, who tried to navigate the ideological split at the law school by striving for consensus and a more balanced faculty. That said, I don’t think that means she will act the same way as a Supreme Court justice. There is enough evidence in her writings to indicate a distinct liberal bent – maybe not as far left as Justice Ruth Bader Ginsberg but closer to her views than to the middle.

Nevertheless, Elena Kagan will be replacing another liberal justice. Therefore, the net effect on Court votes in close cases should not change. Moreover, I doubt that Obama will nominate anyone to the right of her.

Since Elena Kagan’s confirmation is pretty much a foregone conclusion anyway, I think that conservatives should save their real fight for when and if one of the more originalist justices retires and Obama tries to shift the whole balance of the Supreme Court to the Left with another liberal nominee.

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