In selecting Elena Kagan to be the country's next Supreme Court Justice, President Obama has tapped the legal world's version of himself: a skillful politician whose cautious public persona belies a desire to transform the court and shape a new Constitutional liberalism.Video Clip: Drill scene from Brian De Palma's "Body Double" (1984).
In announcing her appointment yesterday, Mr. Obama praised the Solicitor General as someone who had won kudos from "across the ideological spectrum" and proven that she could work with conservatives, even (gasp) hiring some while dean of Harvard law school. Known for her personal charm and politesse, Ms. Kagan is also a woman of the modern judicial left who is unlikely to break from the High Court's liberal bloc on any major legal dispute ....
Mr. Obama may also see in his nominee a reflection of his philosophy that judging cases should be guided as much by personal experience and "empathy" as by the plain words of the Constitution. Writing in 1993 in the Texas Law Review about Justice Thurgood Marshall, for whom she clerked, Ms. Kagan provided a glimpse into her own jurisprudence.
Justice Marshall, she wrote admiringly, "allowed his personal experiences and the knowledge of suffering and deprivation gained from those experiences, to guide him." In his view, she explained, Constitutional interpretation demanded that the courts "show a special solicitude for the despised and disadvantaged . . . and however much some recent Justices have sniped at that vision, it remains a thing of glory."
Across her career, Ms. Kagan has also been a reliable legal partisan. While Harvard dean, she joined three other law school deans in a letter to the Senate Judiciary Committee on detainee policy, arguing that "immunizing the executive branch from review of its treatment [of detainees] strikes at the heart of the idea of the rule of law." In a 2007 Harvard commencement speech, Ms. Kagan disparaged legal memos written by John Yoo as "expedient and unsupported legal opinions," that "failed to respect the law." So much for crossing the intellectual aisle.
Ms. Kagan is nonetheless likely to clear the Senate, barring some new development. The Senate confirmed her as Solicitor General last year 61-31, and at least as many will vote against her again for what is a lifetime appointment. But Republicans lack the votes to defeat her even if they were inclined to filibuster, and we doubt that they are.
NOT EXACTLY RELATED BUT F***ING INTERESTING NEVERTHELESS: Elie Mystal, "Elena Kagan and Me: One Semester of Civ Pro With the New SCOTUS Nominee" (via Memeorandum).