Everyone seems to have pretty much known Elena Kagan would be the Supreme Court nominee this time around. I didn’t bother getting all worked up about the possibility of my civil procedure professor (liberal favorite Judge Diane Wood) being nominated like I did last time. But even though it was a foregone conclusion, it’s still hard to tell why the President picked Kagan.

Elena Kagan

Kagan is a cipher. Her law review articles are boring, even for law review articles. In the 1990s, she argued that the current doctrinal mess that is the First Amendment makes sense if you see it as a series of tests that identify and strike down statutes that were motivated by an impermissible government purpose. (“Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine,” 63 U. Chi. L. Rev. 413 (1996)). Yes, that’s about as dull as it sounds. Other First Amendment specialists run around yapping about Supreme Court precedent that ought to be overturned, or suggesting principles that both explain doctrine and show how it should be extended, or exploring the titillating origins of obscenity law (err, or maybe that’s just my free speech professor). Kagan, in contrast, found a clever way to justify the status quo.

Kagan is supposedly big on executive power, a concept that has recently been associated with conservatives who love George W. Bush (see John Yoo’s newish book Crisis and Command). President Obama seems to like her reputation in this area, since he nodded to it in his nomination speech (he said that she has a “a firm grasp of the nexus and boundaries between our three branches of government”). But executive power can be either conservative or liberal, depending on who’s in the White House. And the article in which she supposedly expounds her views on executive power (“Presidential Administration,” 114 Harv. L. Rev. 2245 (2001)) does not deal with war, or habeas corpus, or any of the recent hot-button issues. Rather, she argued that the president should have more control over some of the administrative agencies, and pointed out that President Clinton was just as meddlesome as President Reagan, but in a pro-regulatory direction. Somewhat more worrisome are various exchanges about executive power during her confirmation hearings for solicitor general. But in my opinion, it’s impossible to draw any inferences about her personal beliefs from those exchanges.

What is clear is that Obama was looking for a youngster (Kagan, at 50, would be the youngest member of the Court) who will extend his influence on Supreme Court doctrine for a long time to come. But this is ironic, since Obama has not tried very hard to fill the lower court vacancies that represent the next generation of judges. This is important not only because the ideological stance of appeals court judges makes a difference in how they decide cases (see Sunstein, Schkade, and Ellman, “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” 90 Va. L. Rev. 301 (2004)), but because the ideology of the clerks they hire plays a central role in shaping not only the judiciary, but also academia, government, and private law firms. (Note that Elena Kagan clerked for Judge Abner Mikva and Justice Thurgood Marshall.)

Naturally Stranger readers will want to know about Kagan’s stance on gay rights. Kagan—regardless of her own sexual orientation—does seem to love the gays. Here’s her Solomon Amendment email to Harvard students (“The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong—a moral injustice of the first order“). I would completely disregard her statements during the solicitor general confirmation process on the Constitution’s minimal protections for gays and lesbians: she was talking about current constitutional doctrine in the context of a hearing to decide whether she could argue in favor of current U.S. law (including the federal DOMA). Her statements about current equal protection doctrine were perfectly accurate, and as a Supreme Court Justice, unlike a solicitor general, she would be empowered to make new doctrine.

I will also point out one tiny little area where Kagan will almost certainly be more protective of civil liberties than Justice Stevens was: flag burning. A World War II veteran, Justice Stevens favored a big gaping exception to First Amendment doctrine in the flag burning context. See Texas v. Johnson, 491 U.S. 397, 436 (Stevens dissenting). Kagan, meanwhile, has argued that even carefully written statutes targeting flag burning are unconstitutional. See 63 U. Chi. L. Rev at n. 242. So your antiwar bonfires are safe.

Basically, though, we know very little about Kagan’s positions on major constitutional issues or philosophy about constitutional interpretation. Luckily, we still have the confirmation hearings. And if Kagan doesn’t want to be a hypocrite, she should engage in a serious discussion of her judicial philosophy in the Senate chambers. As a law professor at the University of Chicago in the 1990s, she argued, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures [referring to the Ginsberg and Breyer hearings]. Out, then, with the new mess and in with the old!” (“Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919, 920).

Senators should quote liberally from this priceless book review, and make Kagan tell them how the Constitution ought to be interpreted. President Obama, meanwhile, should buy every Senator a copy of this brand-new book: David Strauss’s The Living Constitution. Republicans are winning the public opinion war on judicial philosophy. Kagan, a lifelong Democrat and a sure confirmation bet, should seize this opportunity to push back.

Annie Wagner is The Stranger's former film editor. She was born and raised in Capitol Hill, but has since lived in such far-flung locales as Phoenix, AZ, Charlottesville, VA, and Wedgwood. After graduating...

57 replies on “What Does Obama See in Elena Kagan?”

  1. Welcome back, Annie – hope you contribute as the confirmation goes on too! I have a huge crush on Kagan but your reminder about the executive power thing is pretty sobering.

  2. Wow, that was almost as exciting as a law review article.

    There are a couple of simple truths here: Nobody (possibly even Obama) really knows where she stands on the “issues” (I’ll save my discussion of whether justices should even have a stand on the issues for another day); and, unless there’s a pretty serious skeleton in her closet that we don’t know about, she’s going to get confirmed. Everything else is just mental masturbation.

    Of course, mental masturbation is what lawyers do best, so have at it.

  3. “Republicans are winning the public opinion war on judicial philosophy” sounds questionable to me. Democrats have been quick to point out that the recent Supreme Court decision to strike down campaign finance law was some of the most egregious judicial “activism” in history. And they should continue to do so.

  5. Keekee, I got a chuckle out of one of the comments to the NYT article on her yesterday: “Couldn’t you find a more flattering photo of her?” Um, I’m afraid there aren’t any flattering photos of her.

  6. @3: Arguing that Citizens United was wrongly decided does not a judicial philosophy make. Have you heard of originalism? Thought so. Have you heard of common law constitutionalism? That’s what the liberal justices on the Supreme Court do, but the general public doesn’t understand it. And how could they, when then-Judge Sotomayor complacently accepts Justice Robert’s ridiculous balls and strikes analogy:

    KOHL: We heard as much recently about Chief Justice Roberts’ view that judges are like umpires simply calling balls and strikes. So finally, would you like to take the opportunity to give us your view about this sort of an analogy?

    SOTOMAYOR: Few judges could claim they love baseball more than I do. (LAUGHTER) For obvious reasons. But analogies are always imperfect. And I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It’s a refrain I keep repeating because that is my philosophy of judging–applying the law to the facts at hand. And that’s my description of judging.

    I promise you, Republicans are winning. See the Quinnipiac poll results reported here.

  7. She seems to have had a sudden change of heart-

    But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion. . . .

    “She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

    “You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.

  10. @9: I met Stanley Fish last week, and while he is hilarious and brilliant, he is also a contrarian hack. (And you’re is spelled with an apostrophe and an “e.”) No one who has ever studied First Amendment doctrine thinks it flows inevitably from the text–much less the original intent of the Framers–of the First Amendment.

  11. Annie,
    It seems that we’re all in agreement that her public record is sparse, especially as compared to what is available for the other short-listers. At the same time, she is very well known by those who made the nomination decision. In other words, their private information about her is much more comprehensive than their information about the other candidates except Wood. Might we come to find out that Obama et al knew all along what her positions were based on years of personal, mostly private, interactions with her?

    (Gus says hello.)

  12. Good post. Here’s a question for the author: Do YOU decide which phrases to (apparently) arbitrarily bold, or is that someone at Slog?

    Followup question: Why the hell don’t you stop?

  13. obama picked her because he’s known her forever, likes her, thinks she’s smart, and trusts her.

    i guess.

    and she’s no worse looking than ginsburg or sotomayor. or scalia. or alito. or any of those assholes. and it wouldn’t be possible for anyone to have a soul uglier than clarence thomas’.

  14. @12: No, she can bold anything she wants to bold. You’re just jealous because you don’t know how to do it.

  16. I realize she is a very accomplished attorney with an impressive array of feathers in her legal cap, but it still seems so odd to me that her first position as a judge will be as a Supreme Court justice.

    I think what bothers me most about it is the uncomfortable reminder of Harriet Miers. I realize the two have vastly different legal careers, and that Ms. Kagan’s is light years more stellar, but I was gobsmacked that Bush would even consider nominating someone who had never served on any bench. It seemed beyond the pale back then, and it still seems so odd now.

  17. @16: i don’t think judicial experience has always been considered as neccessary for the SCOTUS as it is now – it’s just recently that this has been ‘normal’. but there’s plenty of non-judges if you go back before St. Reagan.

  22. Hey 52.80-I’m not ashamed of my vote and I’ll do it again if 2 douchebags from the Dems & Reps run against each other. (not that the vote mattered too much living in Washington) (however, convincing my Mom who lives in New Mexico to vote Nader was damn inspiring)

  24. Why should we in the West care about another elitist Eastern Law School nominee who is part of the Catholic/Jew lock on the US Supreme Court?

    Wake me up when you get someone from a Western Law School or an Atheist, Wiccan, Buddhist, or Pastafarian.

  27. @ 5 – Yeah…I’m a fan of Kagan, but she really doesn’t photograph well.

    I also take issue with describing her law review articles as boring, but I’m an admin nerd.

  28. It’s not necessary to to be flashy or charismatic, but when Republicans nominate judges like Alito and Roberts, Democrats need to do a lot better (and yes, I mean liberal) than a Kagan.

  29. @26,

    I was taking issue with Annie’s position specifically. She’s butthurt that her flashy and charismatic law professor hasn’t been nominated, when there are easily hundreds of qualified candidates.

  30. Kesh: Cool.

    Anne: But let’s face it, darling, law review articles are inherently boring, no matter who writes them. As a practicing attorney of more years than I’m willing to admit to here, nobody reads that stuff, and God help you if you’re reduced to actually having to cite it.

  31. Oh, Jesus, I just had a shot of Jagermeister “go down the wrong way.” The choking’s no fun, but oh Lord it burns. That’s a first for me.

  32. @ 30 – Haha, fair enough. I just don’t think her writing is any more boring than your standard LR article. Which is admittedly a high, high bar to pass.

    God help you if you’re reduced to actually having to cite it.

    I hate citing things, period. I wish to round up every Bluebook in the country and build a giant bonfire.

  34. I suspect conservatives are “winning the public opinion war on judicial philosophy” the same way they’re winning the public opinion war on the role of religion in public life: Since the majority of people who cite the sacredness of either the Constitution or the Bible as their main motivation are people who haven’t actually read those documents, conservative pundits get to tell them pretty much anything they want and claim that it’s all there in black and white.

    Simple people like simple ideologies, and there is no shortage of simpletons.

  36. Kagan being identified as a cipher is a stretch considering Kagan’s résumé. It should only be awhile before her perceived ‘shortcomings’ (unattractive, single, purpose-driven) will result in her being identified as a lesbian cipher. Annie’s back and everyone’s entitled to her withering opinion.

  38. @31 switch to Hale’s Ale brews – you won’t be paying the beer tax if you do that.

    So it won’t hurt quite as much.

  39. She’s a friend of Obama’s. They taught together at UC, so they hung out at all the faculty events, they debated like academic lawyers debate. They got drunk together. He knows what she believes in.

  40. Holy shit, Bluebook discussion!?!?! Please remember that the period after “id.” is italicized. But that’s a no-brainer since everyone can tell an italicized period from the rest.

  41. How can you say she would be good for LGBT civil rights if she refuses to answer the simple question of whether she is a lesbian or not? It is NOT an invasive question as the left (straight) bloggers would have us believe. We know the “sexual orientation”–at least implied–of every other member of the Court. Specifically because their heterosexual relationships are sanctioned by law. Something gay people are wrongfully denied. Asking if she is a lesbian is not asking about her sex life, it is about simply knowing an innate characteristic like gender or race. Imagine if she tried to get away with hiding that? Pat from SNL as a Supreme?? It is laughable. It is ridiculous that she would refuse to acknowledge the matter, regardless if she is gay or not. And if she just likes to be by herself outside of a relationship, she should just say that. It is telling that those (straight) pundits on the left don’t get what this is really about. This is the essence of our civil rights movement. As long as gay identity is considered something that should (or can) remain hidden we will continue to have closet cases like Rekkers and Haggard, and people will continue to legitimately believe that it is OK to deny LGBT Americans civil rights, because it is not about identity, it is about sex.

  42. Ahem. Punctuation is never italicized, underlined, or bolded. We’re obviously dealing with an inferior legal mind here. 😀

  43. @42, Since you’ve memorized the Bluebook, it’s unnecessary for me to direct your attention to the final sentence of the first paragraph of Rule 4.1: “Note that the period at the end of ‘id.’ is always italicized.”

  46. @ 43, 44 – The fact that the italicization of the period in Id. is a point of conversation? Shit like that is why I hate the Bluebook.

  49. Oh my, Bluebook debate? I must point out that a) I go to Chicago, where we use something insane called the Maroonbook, and only made concessions to the Bluebook for you, dear readers, who ought to be able to look stuff up on Westlaw without getting confused; and that b) I modified the Bluebook conventions because I think the idea of italicizing article titles is stupid. They are parts of a longer work, and thus they should be enclosed in quotation marks. Nobody is citechecking my Slog post, I thought (erroneously!).

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