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Expect Style Over Substance As Kagan Is Vetted

May 10, 2010

By James R. Copland

Prospective justices have learned to avoid controversy in confirmation hearings by refusing to state their core beliefs, obfuscating their records, and dodging any relevant questions.

Elena Kagan, President Obama’s second nominee to the U.S. Supreme Court, would be the first justice to join the nation’s highest judicial body without prior experience as a judge since William Rehnquist in 1972. Her record as a litigator is essentially limited to the last 14 months, when she has served as the nation’s solicitor general. And her record of scholarship, while impressive, is rather narrow.

So what are we to make of the president’s choice?

The Constitution spells out essentially no standards for service on the Supreme Court, and it’s hardly unprecedented for such appointments to be relatively inexperienced and young (Kagan is 50). But Kagan’s scant paper trail makes it tricky to assess her nomination, at least if we want to guess how she’ll rule on the court.

In trying to read the tea leaves, defenders and detractors alike have looked to her recent service as dean of the Harvard Law School, where, notably, Kagan recruited a few solid conservatives to the school’s faculty. (That such a move is notable speaks volumes about the legal academy.)

Obama pointed to just this hiring record in his remarks announcing Kagan’s nomination, and her proponents argue that her ability to deal amicably with conservatives will result in expanded influence on the court. Conversely, critics on the far left -- ironically, the source of some of the most negative vitriol launched against this nominee -- worry that Kagan’s Harvard hiring decisions portend hidden but dangerous rightist tendencies.

I’d guess that these hopes and fears are both misguided, since the job of being a dean has very little to do with the job of judging. Some 20 years before Kagan worked to resuscitate the law school at Harvard, Guido Calabresi did the same at my alma mater, Yale, where as dean he recruited conservative scholars like Bob Ellickson, John Langbein and Alan Schwartz.

Notwithstanding that record, once Calabresi was nominated by President Clinton to the 2nd Circuit Court of Appeals, he fell comfortably in with that court’s left flank. And his chumminess with right-leaning faculty and students as dean hardly translated into sway over his judicial brethren, as evidenced by his colleagues’ rather frequent decisions to reverse his opinions by a full en banc court.

It’s very likely that Kagan will follow a similar path. Yes, she may be more enthusiastic about executive assertions of political prerogative over administrative agencies than is palatable to some on the left. But when it comes to hot-button issues like abortion, affirmative action, sexual orientation, and the environment, Justice Kagan is likely to come down just where we’d expect, given her upbringing on Manhattan’s Upper West Side, her Ivy League education, and her service to politicians Michael Dukakis, Bill Clinton, and Barack Obama.

Likewise, don’t expect Kagan to hold magical sway over the justices to her right. In her first-ever argument before the Supreme Court -- last year’s Citizens United campaign-finance case -- she bungled out of the gate, earning immediate and sharp rebukes from Justices Antonin Scalia and Anthony Kennedy. (Kagan had, like Obama in his State of the Union speech, misleadingly conflated corporate campaign contribution limits with independent expenditures conveying political ideas.)

In the end, though, we won’t know much about Kagan-as-justice until she sits on the high court. Senators will doubtless grill Kagan in the forthcoming confirmation hearings -- and they should -- but such televised spectacles are more about political posturing than eliciting meaningful information about nominees.

Hopefully, at least, the process can help to educate the public about the proper role of judges, and undo some of the president’s harmful mischaracterizations of the aforementioned Citizens United ruling. But barring a shocking revelation, I’d expect Kagan to be confirmed.

Elections have consequences, and those troubled by what they hear in the upcoming confirmation proceedings should keep that in mind heading into the fall campaign season.

Original Source: http://www.foxnews.com/opinion/2010/05/10/james-r-copland-obama-elena-kagan-nominee-supreme-court/

 

 
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