Tomorrow Obama is expected to nominate Elena Kagan to the Supreme Court. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard. Chris Good writes:
I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s “wise Latina” moment, if there is one, will prove to be.
“She has been much more careful than Justice Sotomayor. She never would have said something like that even if she thinks it. She’s been so careful for so long that no one seems to know exactly what she does think,” Severino said.
Severino attended Harvard Law School, where Kagan served as dean. She asked fellow Harvard people about Kagan’s tenure as dean. “Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list.”
This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation. But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the “wise Latina” speech? Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?
At this point — and more might be revealed in hearings and upon the examination of her written work — I would think not. She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices. (It is intellectual argumentation rather than social charm that makes the difference on the Court.) So there could be worse — that is, more “dangerous” picks from a conservative perspective. Kagan has not made her life’s work the promotion of minority victimology. She isn’t without academic qualifications. So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.
This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts. It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.