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May 11 2010

What Does Elena Kagan Bring to the Supreme Court?

President Obama’s selection of Solicitor General Elena Kagan has been met with mixed reviews. Those on the left worry she’s not left enough, while those on the right just worry. It is likely she will be confirmed because while she may not be everyone’s cup of tea, there is really nothing you can point to that’s a “dealbreaker.” (See, for example, Sotomayor’s “Wise Latina” comment).

We’ve heard the stats: there will now be three women ( a plus); all the justices will have gone to either Harvard or Yale for law school (a minus); she will be the youngest member (a plus, at least if she votes the way I want her to); another New Yorker (a definite plus) and for the first time in US History there will be no Protestants on the bench (6  Catholics, 3 Jews)(neither a plus nor minus). But what do we specifically know about her to lead us to predict how she will fare on the Court?

Since she was never a judge, there are not hundreds of decisions you can look at to try and figure out where she stands. She only practiced law for the first three years out of law school, if you call working as a junior associate at a huge law firm “practicing law.” She has been a “policy” person all her life: advising politicians, serving as a deputy White House Counsel; Dean of Harvard Law School; and finally Solicitor General for two years. This is, in my opinion, a bit light on reality. It is ok that the job of Supreme Court Justice is an Ivory Tower-type position, but do we want our Justices to shift from Ivory Tower to another? Isn’t it better if our Justices have been dealing with the law as it is applied to that vast majority of the country? Here’s another judge who has never tried a case or represented a client in court or even presided over a trial or an appellate argument, now being one of 9 people who decide the law of the land. Her alleged strength is that she will be a counter-balance to the persuasive and thoughtful Antonin Scalia and that therefore she may be able to swing Justice Kennedy to the left once in awhile on close issues. Let’s hope that happens.

I am not saying the President should have picked  Judge Judy, but another Justice in the model of Sotomayor would have been preferable to me. I tend to like judges who have some real life experience before the take the bench.  Policy discussions without real life application never solved anything.

4 comments

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  1. Diana

    I agree with your sentiments here.. I would also add that the job of a Supreme Court justice is not to “make policy” but to decide the constitutionality of an issue. Of course, as far as necessary experience for the Supreme Court–policy discussion is all well and dandy–but experience as a “practicing” lawyer or judge would certainly be helpful…. However, let’s view this issue from Obama’s perspective. Obama is himself a well educated person who took his studies seriously and studied constitutional issues. I would guess that he feels that he woud be qualified to decide important constitutionality cases (without necessarily practicing law). Elena is a woman who shares the same love of academics and political theory/policy. Obama himself has been criticized as not having enough experience. His decision to nominate Elena further shows his Philosopher-King attitude. That is, like Plato’s P/K, it is the most intelligent, highly-educated that are best suited to make just political decisions for the general public.

  2. Oscar Michelen

    Excellent point, Diana. There are P/K who also have useful experience though

  3. Ty Enright

    I agree with you about Kagan. Obama, who I once was buoyed up upon learning that he taught Constitutional Law, is now to me, no Philosopher King. and certainly lightweight in his fealty to the Constitution. He continues in the Bush tradition of maintaining much of the Imperial Presidency. As I feared, the winner of the election found the flavor of power too delicious to give up. It was too tempting to Obama, as it would also have been to Hillary or McCain, to return this Country’s balance of power to the People, who are sovereign, something we seem to have forgotten. Politicians are genetically unable to resist power. The Imperial Executive threatens the future of Civil Rights and Liberties in this nation, even as the Citizens have also long abandoned their belief in the Rights and Responsibilities that go with an enlightened Republic. (Certainly our mainstream media has abandoned any semblance of Journalistic competence.) Most of all our Citizens do not believe in free speech, for anyone but their own mirrors.
    Kagan, seems smart and eminently predictable. Unlike yourself, I see the left wing of the Court as even more dangerous than the right wing, and I see Kagan and Sotomayor as future boring left wing apparatchiks. Anyone who doesn’t think that both sides have not ceded Citizen’s rights in various cases, to a power corrupted executive, hasn’t been scanning decisions. Still, unfortunately all in all, the performance of the Courts is at a considerably higher level than the other 2 branches of our Government. A great many decisions are seriously and deeply considered, certainly at orders of magnitude more significant than our Legislature and Executive who have abandoned their responsibility to protect the Rights, Privileges, and Immunities of the Nation’s Citizens, to the Courts. Legislators, local, State, and Federal who have no compunction on passing legislation they know to be useless, counter productive and Un-Constitutional. And if they are unaware that they are doing so, so much the worse, it means that they are stupid and ignorant, rather than merely corrupt. The Corrupt after all can find redemption, whereas the stupid never will.

  4. Oscar Michelen

    Ty – Well something we finally agree on – the Supremes have given too much power to the Executive and one of my main concerns about Kagan is she is staunch supporter of that philosophy. I also agree with you when you say that the legislative branches of government on both the Federal and State level have strayed far away their main mission – to protect and serve the individuals they represent and instead have become beholden to special interests and pork.

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