Wednesday, June 30, 2010

On Elena Kagan

With the confirmation of Elena Kagan to the Supreme Court seeming imminent, I thought I'd weigh in on the subject. Overall, I think she is a smart choice by the President. She is liberal enough to appease Democrats, but isn't liberal enough to give the Republicans just cause for complaint. She is competent and is without any controversy of real significance (she isn't the only liberal academic opposed to "Don't Ask, Don't Tell").

I do wish, however, that she would answer the questions posed to her by the Senators in a meaningful way. I know that it is modern practice for nominees to avoid giving an indication of how they would vote on an issue, but I find it unfortunate that they hide behind that guise for nearly every subject of significance. It is clearly a strategy motivated to prevent nominees from saying anything that will inhibit their chances at nomination. The President's party is expected to fall in line and the opposition party is expected to oppose, and such party cohesion makes the nomination process little more than a chance for error on the part of the nominee. This is particularly frustrating when taking into account the fact that Kagan is forced to backtrack on a previous stance to follow this strategy (she wrote previously that Supreme Court nominees should have to answer questions about their Constitutional opinions).

It also seems to me that the issue of her barring military recruiters from Harvard's campus while a dean is misrepresented by both sides. It seems completely acceptable to me (and I admittedly have no understanding of the legality of her actions) that Harvard should be able to bar any organization from its campus, especially with such a noble reason as protecting the institution's anti-discrimination policy. However, I find it hard to believe that Kagan felt that she was only following her institutional duty and not making some form of formal protest to "Don't Ask, Don't Tell". Ethically (again, I have no inclination as to the legality of her actions), I think that she was within her rights to do so. I find it unfortunate that she hides her former willingness to protest a policy she disagrees with so that she can be more "confirm-able".

In conclusion, I support her confirmation to the Supreme Court. She is too liberal for my taste, but she seems competent, lacks any obvious shortcomings or controversies, and genuinely doesn't seem the type to engage in judicial activism. Realistically, she is probably the most centrist appointment we could ask of Obama, and since she is replacing a consistent liberal vote in Justice John Paul Stevens, she may even mark an overall rightward shift in the court.

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