Mixed Views From Both Left And Right On Kagan Nomination

News of the choice of Elena Kagan to be Barack Obama’s second appointee to the Supreme Court neither has me terribly upset or very excited. Presumably this is the type of reaction which was desired by choosing someone without a very strong, or controversial, public record.

There is mixed response on both the right and the left. There are already a number of falsehoods being spread, with Media Matters debunking a long list of  myths. The Volokh Conspiracy has some preliminary thoughts which show, while doubting the claims by some on the left that Kagan is a closet conservative, she is probably the best conservatives and libertarians can hope for. Ilya Somin believes that while Kagan is a liberal she has shown openness to non-liberal views. She also writes this,  disagreeing with some of the claims coming from others on the right:

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

Kagan’s openness to non-liberal views can be a virtue but also opens her to attacks from some liberals. Glenn Greenwald has outlined the criticism of her from the left. The issue of greatest concern to both liberals and libertarians is her view on presidential power. Radley Balko of Reason writes:

She’s a cerebral academic who fits Washington’s definition of a centrist: She’s likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens’ reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama’s choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama’s decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a “tough on crime” reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system’s disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

While I would prefer a nominee who has a strong record on civil liberties issues I’m not certain there is cause to panic. Kagan has spent her time in government in the executive branch and does appear to see matters more from their perspective, but this could change as she works in a separate branch of government. Kagan’s job as Solicitor General is to argue the position of the administration but her views as a judge might not necessarily be the same. I also hope that her experience as Solicitor General has also led her to see the weakness of some administration arguments, even if she could not act upon this in her current position.

There has also been speculation as to how the appointment will affect efforts at marriage equality. William Jacobson discusses her view that, “There is no federal constitutional right to same-sex marriage.” This does not mean she is personally opposed to same-sex marriage, but that she might be unlikely to support judicial as opposed to legislative efforts to achieve this goal.

While immediate attacks from the right wing blogs were anticipated, it remains unclear as to whether the Republican Party will try very hard to block her nomination.  Seven Republican Senators did vote to confirm Kagan to be Solicitor General.   However Bob Schieffer believes that Republicans will wage a vicious fight in light of the current degree of polarization. He calls this an “especially toxic election year” as the far right members of the tea party movement are out to purge even conservative Republicans from the GOP for not being conservative enough. He believes  “you will see some Republican Senators, moderates, giving very careful consideration to their vote on Elena Kagan. In a way, a vote against her would be ‘Tea Party insurance,’ to let people know that they’re moving to the right.”

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