President Obama has officially picked Elena Kagan to replace John Paul Stevens on the Supreme Court. So who is she?
Elena Kagan doesn't have much of a track record to go by, especially considering she's never even been a judge. Kagan does have your typical Upper West Side liberal pedigree though (Hot Air):
She has no experience as a judge, and little as a private-sector attorney, either. Kagan has spent most of her career as an academic, spending six years as Dean of the Harvard Law School — giving the court yet another Harvard connection when people have been questioning Harvard and Yale exclusivity on the Supreme Court. For the past fifteen months, Kagan has served as Solicitor General, the Obama administration’s representative to the Supreme Court, but that experience seems rather thin as well. One might have expected someone who hadn’t served as a judge to spend at least several years arguing cases before the Court prior to getting appointed to it.
One thing that sticks out to me as rather strange, is that despite having "spent most of her career as an academic," Kagan has an incredibly sparse public record, making it difficult to find hints of her Constitutional opinions.
Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews.
Kagan's handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president's power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations.
They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it's unlikely to offend anyone in a position of power.
Of course the Obama administration is trying to avoid this matter (among others) regarding its late-Sunday night announcement, by turning Kagan's nomination into a big gay soap opera.
Does anyone care what I think of Elena Kagan’s judicial philosophy? No, but they’ll scour every corner of the Internet for “Elena Kagan lesbian” or “Elena Kagan gay,” and it’s been months since I’ve had a Google-bomb winner like that.
[W]hile conservatives are mostly indifferent toward Kagan’s gayness, the Obama administration has acted as if it were a huge scandal ...
Interesting of note too, is Elena Kagan's ties to corporate welfare queen Goldman Sachs.
On Friday, a slew of inquiries was made to the White House and Justice Department about a minor post Solicitor General Elena Kagan once held at Goldman Sachs, the investment bank under fire over controversial mortgage securities transactions. Kagan served on a Goldman advisory council between 2005 and 2008, with the task of providing expert "analysis and advice to Goldman Sachs and its clients." For her work she earned a $10,000 stipend.
I'm not sure if that exonerates her or implicates her. Goldman's stand on public policy issues are as much a problem as their investments. And there was plenty of public policy during these years that should have been questioned. By itself it doesn't say much, but when you choose a stealth candidate, you have to make your judgments [sic] on what you have.
And by the way, this will give the Republicans a chance to raise the populist flag in the confirmation hearings. If the White House wants to play electoral politics with this, can't they at least do it in a way that actually benefits the Democrats?
It is possible that her Goldman ties are trivial, but then again, it sure looks like another one of those Washington "coincidences."
What I find most worrisome (and telling) about Elena Kagan however, is her support for the ever-increasing powers of the Executive Branch. Does Congress even matter anymore?
Ms. Kagan also has a mixed record on executive powers, but one that suggests she might generally be more sympathetic toward the White House than Justice Stevens.
She worked as a White House lawyer during the Clinton administration, when it was facing off against a hostile Congress and seeking ways to act unilaterally. That experience shaped her major scholarly work, a 2001 law review article in which she explained and defended efforts by the Clinton White House to impose greater centralized control over executive agencies.
In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”
Indeed, after Mr. Obama selected her to be his solicitor general, she publicly embraced an expansive interpretation of the Congressional authorization to use military force against Al Qaeda. Ms. Kagan also took a leading role on a legal team that has sought to suppress lawsuits using the state secrets privilege and fought a ruling granting habeas corpus rights to some detainees in Afghanistan.
In summary ... Elena Kagan climbed the (greasy) career ladder of your typical Upper West Side liberal, has published very little in her academic career, consulted with Goldman Sachs, and is supportive of expanding State power to achieve "progressive goals."
[T]he modern conception of the Constitution, which is at some remove from the document itself. Whereas the Constitution as written creates a government of limited powers, modern “constitutional law” has allowed an all but unlimited federal government – nowhere more evident than in Ms. Kagan’s sponsor’s cardinal achievement to date, ObamaCare.
In this time of the Tea Party movement (witness this weekend’s developments in Utah), when the cry is “Give us back our Constitution,” the question, “Are there any longer any limits on federal power?” ... One hopes that at least the Republicans on the Senate Judiciary Committee will be resourceful and diligent in pressing the question.
Don't hold your breathe ... The Senate Judiciary Committee will put on its usual dog-and-pony show, politicians will grand stand, and Elena Kagan will be confirmed:
[A]ny nominee must be weighed against the likely alternatives, not just against some ideal pick. Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to choose. Therefore, I don’t see much to be gained from aggressively opposing her nomination.
Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration’s judicial philosophy ...
America has lost her representative republic and replaced it with a technocratic, corporatist regime. Elena Kagan is just another piece in the puzzle towards building the totalitarian State.
But it's not of "respectable conversation" to question the motives of our beloved government, is it? So instead, the mainstream will focus on the more pressing issue, "But, uh ... She's so gay!"