The only surprises in the leak that Barack Obama will appoint Elana Kagan to replace John Paul Stevens on the Supreme Court were the timing and target of the leak. In retrospect, giving the leak to NBC shouldn’t really surprise anyone, considering how determined its cable network has been to act as Obama’s apologist channel:
President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court, positioning the court to have three female justices for the first time, NBC News reported late Sunday.
Kagan served as the Dean of Harvard Law School from 2003 to 2009. She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.
At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama’s legacy for a generation.
The timing seems less explicable. The late-Sunday leak gets the White House almost nothing it could have had with an early-Monday leak, and it missed the opportunity of pre-empting the Sunday talk shows’ focus on the Times Square bomber and the Gulf oil spill, two narratives that don’t play well for the administration. Instead, the news broke when most people weren’t paying attention at all — not quite as bad as a Friday afternoon document dump, since it would just make it in time for the Monday morning newspapers, but pretty close to the famous bad-news strategy every administration employs.
Is the White House that embarrassed by the choice of Kagan? She has no experience as a judge, and little as a private-sector attorney, either. Kagan has spent most of her career as an academic, spending six years as Dean of the Harvard Law School — giving the court yet another Harvard connection when people have been questioning Harvard and Yale exclusivity on the Supreme Court. For the past fifteen months, Kagan has served as Solicitor General, the Obama administration’s representative to the Supreme Court, but that experience seems rather thin as well. One might have expected someone who hadn’t served as a judge to spend at least several years arguing cases before the Court prior to getting appointed to it.
For “the most transparent administration in history,” Kagan has a very thin paper trail to give clues to her beliefs. She has not published much — a rarity among Harvard Law deans — which Ed Whelan argues doesn’t meet Kagan’s own standards for Supreme Court justices.
What does all this mean? It signals that the White House doesn’t want a big fight over a Supreme Court confirmation. They don’t want to appoint someone with a track record of judicial activism or a record of strong political advocacy. Obama wants a stealth candidate, someone who can win a relatively quick confirmation battle. Of the names floated by the White House after Stevens’ retirement, Kagan attracted the least amount of public opposition.
Will they get a quick and painless confirmation? Republicans may feel that Kagan was the least problematic of the available choices. She is perceived, at the moment, as a moderate liberal, but that may not necessarily be the case when Kagan starts deciding cases. Her position on keeping military recruiters off of college campuses certainly paints a different picture of those politics:
Beginning in 2004, Kagan changed established Harvard policy and barred recruiters from the school’s career center. The Pentagon responded by invoking the Solomon Amendment, a 1994 law that explicitly requires universities that receive federal funding to allow military representatives at least as much access to campus as any other group. With Harvard’s $400 million in annual grants on the line, Kagan was forced to surrender.
But she kept fighting. Kagan and the university filed an amicus brief arguing that Harvard’s policy did not amount to discrimination against the military. The university, claimed the brief, does “not single out military recruiters for disfavored treatment: Military recruiters are subject to exactly the same terms and conditions of access as every other employer.”
Kagan has since claimed she was merely representing Harvard’s institutional view on the matter. Yet the brief includes a footnote that she signed in her capacity as a professor, not as dean.
Either way, the Supreme Court was not impressed. Not only did the justices dismiss Kagan’s arguments, not a single liberal on the court offered a word of support. Souter, Ginsburg, Breyer and John Paul Stevens (the man Kagan would replace), all agreed with the majority decision written by Chief Justice Roberts.
Kagan may have had a sterling reputation as a law school dean, but as a jurist, she’s a mediocrity simply on the basis that she has no experience at all in that position. There is an argument to be made to appoint people outside of the realm of judges to the Supreme Court to get real-world perspective (the Constitution doesn’t require that an appointee be an attorney, let alone a judge), but very few people would look at Kagan’s career as anything but academic and insider politics. While Kagan may be the least objectionable of Obama’s potential appointees, the truth is that she’s a lot like Obama — an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV. Republicans who oppose Kagan should focus on those shortcomings.
Will there be any massive push against Kagan? I’m betting she’ll get around 70-75 votes for confirmation despite these shortfalls.
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