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.

Sponsored

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.

Support The Stranger

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.