The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick moderate candidates who often disappoint their liberal base.More at the link, plus related rants at Memeorandum.
Ms. Kagan is certainly too liberal for conservatives, who quickly criticized her nomination on Monday as a radical threat. But much like every other Democratic nominee since the 1960s, she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia.
In many ways, this reflects how much the nation’s long war over the judiciary has evolved since Ms. Kagan was a child. While the American left back then used the Supreme Court to promote social change in areas like religion, race and abortion, today it looks at it more as a backstop to defend those rulings. The right, on the other hand, remains aggrieved and has waged an energetic campaign to make the court an agent of change reversing some of those holdings.
Along the way, conservatives have succeeded to a large extent in framing the debate, putting liberals on the defensive to the point where Sonia Sotomayor echoed conservatives by extolling judicial restraint in her confirmation hearings last year and even President Obama recently said the court had gone too far in the past. While conservatives have played a powerful role in influencing Republican nominations, liberals have not been as potent in Democratic selections.
In that vein, then, no Democratic nominee since Thurgood Marshall in 1967 has been the sort of outspoken liberal champion that the left craves, while Justice Scalia has been joined by three other solid conservatives in Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. By all accounts, Mr. Obama did not even consider the candidates favored most by the left, like Harold Hongju Koh, his State Department legal adviser, or Pamela S. Karlan, a Stanford Law School professor.
I'll note, though, I don't think it's entirely accurate to suggest that Kagan's writings are "scant." There's a pretty good paper trail posted at the Senate Judiciary Committee's homepage.