Tag Archives: Elena Kagan

Elena Kagan is the Wrong Choice For Supreme Court Justice

When I read that Supreme Court Justice John Paul Stevens was going to retire, I thought, “I hope President Obama nominates someone decently liberal to succeed him.” There’s been a short list of legitimate, potential nominees floating around ever since Sonia Sotomayor replaced David Souter. You’d think that if you were on the list back then, then you’d again be on the short list for this nomination. The two that met with Obama for this nomination that also met with him for the prior nomination were US Solictor General Elena Kagan and federal appellate judge Diane Wood.

John Paul Stevens, if you are unaware, is considered by many to be the leader of the liberal wing of the Supreme Court. Souter, in comparison, was a much more center-left Justice. Replacing Souter with Sotomayor, a woman with a center-left ideology herself, didn’t really change the ideological makeup of the Court. In order to, at the very least, maintain the status quo of the Supreme Court, you’d have to nominate someone with some fairly liberal views on things. Really, that shouldn’t be that hard to accomplish – the President is a Democrat, Democrats have majorities in the House and the Senate.

From all the reading I’ve done, the best person to maintain the balance of the Court would be Diane Wood as opposed to Elena Kagan. However, if you’ve caught the news at all, we now have Elena Kagan as President Obama’s Supreme Court Justice nominee. I just see so many problems with his choice.

Imagine if you will that it’s your job to nominate someone for a lifetime Supreme Court Justice appointment. How would you do it? What qualifications would you take into consideration?

Keep in mind that it’s not a requirement that you have judicial experience – judge, lawyer, etc. – to be nominated. Many Justices haven’t had any (see interesting list of such folks here), though all of our current Justices have.

Kagan is the current US Solictor General. Basically, that job entails representing the US in court cases in front of the Supreme Court. Prior to that she was Dean of Harvard Law School. Before that she was Associate White House Counsel under then-President Bill Clinton. Before that she did some clerking and blah blah blah.

Diane Wood is a federal judge on the US Court of Appeals. She’s been doing that for something around 15 years. Before that she worked at the Department of Justice doing anti-trust stuff. She did other stuff before that, but it was quite a while ago and I don’t feel like listing it.

Suffice it to say they’re both fairly intelligent people, I’d say that’s a given considering their prior/current careers. I’d probably look at any writings, speeches, or otherwise expressed opinions on key issues.

Kagan hasn’t published much, according to Paul Campos, just three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces.  I would call that not all that much.  The few other things we can determine about Kagan aren’t all that positive.  Kagan urged then-President Bill Clinton to ban late-term abortions and to deny Medicare funding to abortions in cases where a woman’s health was at risk.  During her tenure as Dean of Harvard, Kagan filled 29 positions at the University – 23 white males, 5 white females, and 1 asian-american female.  Though, draw what you will from Nate Silver’s statistical analysis of this hiring practice (also, he lists 31 positions, not 29, not sure which one is correct at the moment).  Also while Dean of Harvard she banned military recruiters from campus (good), but when the Department of Defense threatened to withhold funding from the University, she backed down (bad).  She supports expanding the power of the Executive, something I don’t really agree with.  She also supports indefinite detention of so-called enemy comabatants.

Some of these issues are bigger than others, but taken together, there’s certainly enough to question Kagan as a nominee.  Perhaps you would say, “Why don’t we just ask her what she thinks about X?”  I think that’s a pretty good idea actually.  You know who else thought that? Kagan.  In 1995 she argued that Supreme Court nominees should have to answer questions about pending cases and other specific issues.  You know who else thought that? Then-Senator Barack Obama.  He was referring to then-nominee Harriet Miers – who, like Kagan – didn’t have all that much experience.  Guess what Kagan is going to do though? Not answer questions, that’s what. Which is, you know, quite helpful.

All in all, I guess my biggest problem with Kagan is that there is just so much about her judicial philosophy that is unknown – and will remain that way until she is officially a Supreme Court Justice.  I find that troubling. To me, it seems like a big risk.  Yes, she could turn out to be a great Progressive Justice.  She could also not. We simply do not know.  Why risk it? I don’t get it.  Too many people are going to say, “President Obama nominated her, so I think she’s good to go.”  That’s fucking stupid.  President Obama has become such a centrist that it’s just sad.  Sad for those people, like myself, who didn’t think they were voting for a centrist.  So what kind of nominee do we get from a centrist president? A centrist nominee.  And that’s not what I think this country needs.

I sure hope I’m wrong about all this.