Commentary Magazine


The Underwelming Kagan

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?