Monday, May 10, 2010

Elena Kagan

CNN (among many others) reports that Obama has chosen to nominate current Solicitor General Elena Kagan for the Supreme Court seat being vacated by Justice John Paul Stevens, who is retiring. The linked article has a thumbnail biography of Kagan, who is certainly credentialed... former dean of Harvard Law School, clerk for Thurgood Marshall, etc. ... but has little public record to show what manner of judge she is. For a more extensive bio, see the wiki.

But none of the bio's contain any depth on her opinions on case law, the law review articles etc. that would give one a clue whether she is anything like Justice Stevens, whose vote on the court she is replacing. For some clue about that, turn to Marvin Ammon, writing on Balkinization. Ammon examines a number of First-Amendment-related cases, including Citizens United (which Kagan argued in her role as SG... in other words, it was her job to hold those positions, not an expression of personal conviction), and his conclusion, though he still hedges any real prediction of future behavior of Kagan on the Court, is not good news for those of us who prefer an expansive view of the First Amendment for individuals, not corporations.

Will this be the appointment that seals the current tiny conservative majority on the Court? One can hardly tell by which senators support Kagan and which do not; some GOP senators, acting like petulant two-year-olds, have already said they would oppose any nominee Obama puts up. So we have to look elsewhere for information about who Justice Kagan, if confirmed, will be on the bench. Read Ammon's position... as I say, it's not encouraging.

If Obama had any sense and any cojones, he'd nominate for Stevens's replacement an equivalent on the liberal side of Robert Bork on the conservative side. S/he wouldn't be confirmed, but such a sharp stick in the eye of the GOP Senate would serve as a splendid message, a sort of softening-up for a somewhat more moderate nominee to follow. Obama needs to stop all this conflict avoidance!

(Minor editing after initial posting. - SB)


  1. Factoid: Three Solicitor Generals have been nominated for the Courts: Robert Bork and Kenneth Starr are the other two.

    Elana Kagan has apparently been nominated because she has no track record on anything important, and is just as wishy-washy as Obama.

    I will be sending a letter to my Senators telling them not to approve her, as the Supreme Court is no place for rookies.

  2. You say, "If Obama had any sense and any cojones ..."

    I'd modify it to read "If Obama had any sense and any cojones, and was a liberal..."

    The problem is he's at best a pragmatic moderate.



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