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Elena Kagan, Triumph of the Bland
In Supreme Court nominee Elena Kagan, President Obama has picked his perfect match.
Kagan's friends and colleagues describe her in terms that could easily be applied to Obama: thoughtful, a good listener, eager to reach out to conservatives--and loath to take politically polarizing stands.
In Kagan's case, the reflex to shun conflict is so extreme that she has managed to avoid taking a public stand on virtually every major issue that might come up in her confirmation hearings.
In "Blank Slate," his piece on Kagan for The New Republic, Paul Campos quotes Tom Goldstein, a Washington lawyer and publisher of SCOTUSblog, describing Kagan as "extraordinarily-almost artistically-careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."
Because of this, Kagan is able to be all things to all people, Campos writes: "progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart."
Of course, now that Obama has picked her as his Supreme Court nominee, Kagan has quickly gained detractors. Republicans have been quick to denounce her lack of judicial experience, and even to call her an "activist"--the knee-jerk criticism of any judicial nominee perceived as potentially liberal.
There could hardly be a less appropriate word to describe Kagan, the establishment lawyer who, as dean of Harvard Law, made it a goal to increase diversity by hiring conservatives. But Kagan did clerk for the great liberal activist judge Thurgood Marshall, and, in honoring his legacy, described him as her hero. In her praise of Marshall, which the RNC is trying to turn into a liability for her nomination, Kagan quoted Marshall's own words on the Constitution, acknowledging the flaws in the founders' original document, including, of course, the status of slaves, and praising the evolution of Constitutional law through 200 years of amendments.
That endorsement of the Bill of Rights is the sort of "activism" the Republicans oppose.
But they also have found plenty to like in Kagan. In her confirmation hearings as Obama's Solicitor General, she drew praise from Republican senators when she agreed with Lindsey Graham on the legality of the indefinite detention of terrorism suspects and warrantless wiretapping, justifying the Bush-Cheney approach to the global, amorphous "war on terror."
On the left, Glenn Greenwald of Salon has argued that views such as these--especially her expansive theory of executive power--make Kagan an unfit choice, and that her appointment to replace Stevens would move the Court to the right. Like Harriet Miers, the underqualified White House attorney George W. Bush had to withdraw because of pressure from right, Greenwald argues that Kagan should meet stiff opposition from progressives.
That opposition does not seem to be taking shape, however.
"Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan's confirmation," Greenwald writes. "Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives -- as they proved several times late in Bush's second term [Miers, immigration, Dubai Ports] -- were willing to oppose their leader whey they disagreed). The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence)."
And then there is the matter of civility. If there is one quality Kagan embodies, it is the Obama notion of meeting rabid rightwing opposition with calm detachment. Her confirmation hearings will pose a test to this approach to politics.
On the issues Republicans love to hammer on, Kagan has given little ground for attack. She advised President Clinton to outlaw late-term abortion when she was serving as his associate counsel, has taken no particularly strong stands on gay rights (despite the row over her move as dean of Harvard Law School to keep military recruiters off campus because of Don't Ask, Don't Tell, she didn't go as far as activists on campus wanted her to, and she later opined that there was nothing unconstitutional about the Defense of Marriage Act.)
Kagan's predecessor as dean of Harvard Law, Robert Clark, wrote an op-ed piece in The Wall Street Journal explaining that Kagan didn't even take the initiative on the military recruiter ban. Instead, she simply continued existing policy.
"It would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true," Clark wrote. Adam Sorkin, the former president of Harvard Law School Lambda, a gay students' group, told the A.P. that Kagan "wasn't the big leader on this. All she did was follow the law at the time."
In her own, scant writings, Kagan has taken a carefully narrow and nonideological approach to issues from free speech to Presidential power, as Campos illustrates with the soporific passages he quotes. Despite an interesting 2005 criticism of Supreme Court nomination hearings as a "vapid and hollow charade"--words that will now be used against her--we can expect more of the same from Kagan.
Not so her critics. No sooner had Obama made his announcement than I received a breathless email from a rightwing PR outfit screaming "Supreme Court SEXpectations" about "what many believe may be the nation's first activist homosexual Supreme Court nominee," and her "extremist sexual views in matters of law."
Obama and Kagan believe in fighting fire with blandness. But the Court, and the country, could benefit from a clear progressive voice raised to counter the increasingly aggressive rightwing tirade machine.