JONATHAN CHAIT MAY 10, 2010
[Guest post by the TNR staff.]
What should we make of Elena Kagan's nomination to the Supreme Court? Read all of The New Republic's analysis below.
Jeffrey Rosen explains why Kagan is the ideal justice to represent Obama's judicial philosophy:
It’s certainly fair for progressive senators to worry whether Kagan would move to the Court to the right. My sense is that this fear is misguided: While Kagan might be nominally to the right of Stevens in a few cases involving executive power, she is likely to be even more effective than he was in winning over Kennedy and more interested than he was for most of his career in challenging the conservatives on their own terms. For this reason, over the course of her career, she has the potential to be the intellectual leader of the liberals on the Court even more than Stevens, who himself a judicial conservative.
Some Senate Democrats have signaled, , that they think the Court needs an economic populist, and despite Kagan’s support for campaign finance reform as a Clinton official and solicitor general, she doesn’t have a track record of advocacy on economic issues. Kagan’s views about business issues—and the degree to which they were shaped by her experience running Harvard Law School—are worth exploring in her hearings.
Tom Goldstein predicts how the confirmation process will play out, outlining the top ten questions that Kagan will face:
To date, commentators on the far left have criticized Kagan and some on the far right have withheld all out attacks. Both sides have rested their positions on a very thin and mistaken understanding of Kagan’s position on executive power. As their assessment of her on that issue develops, I expect that the traditional battle lines--with the left solidly behind her and the right firmly opposed--will take hold. … Now I turn to the most prominent lines of support for and attack against the nomination. Here are the “top ten” issues that will be discussed.
Charles Fried explains how Kagan won over conservatives, like himself, at Harvard Law School:
In February 2005 the student branch of the Federalist Society (a group founded in the early '80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions' words of greeting to the thousand or so Federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: "You are not my people." This brought the dark-suited crowd of Federalist students to their feet in a roar of affectionate approval. (It is worth a footnote that the next day the same group also cheered Larry Summers--God bless the Federalists.)
Paul Campos takes issue with Elena Kagan's lack of a paper trail:
Nobody seems to know what Kagan's views are on most political issues, nor does anyone know what she believes about how judges ought to interpret the Constitution, how much deference courts should give to Congress and state legislatures, and what role the judiciary should play in checking the powers of the executive branch. We don't know because she hasn't told us.
And in a classic TNR piece from 1988, Dana Milbank shows how Elena Kagan became the Clinton administration's "wonderwonk":
Kagan has become something of an all-purpose brain in a place full of people who are more smart than wise. Last Tuesday, when aides were preparing the president for a meeting, he was stumped about a question on Supreme Court rulings on federalism. Instead of calling the Justice Department or the counsel's office, Clinton sent for Kagan. Clinton and Kagan sat in the Oval Office discussing various rulings, wonk to wonk.