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.

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