Kagan a "High-Risk, High-Return" Choice for Justice, Hanna Says
May 10, 2010
By Cheryl Hanna
Professor of Law, Vermont Law School
President Barack Obama has nominated Solicitor General Elena Kagan to replace Justice Stevens on the U.S. Supreme Court. Photo courtesy of Doc Searls/CC BY-SA 2.0.
Today, President Barack Obama nominated Solicitor General Elena Kagan to replace Associate Justice John Paul Stevens on the U.S. Supreme Court. Kagan is a high-risk, high-return nominee for President Obama. If she can survive the nomination, the president is likely to get exactly the kind of judge that the court needs. By all accounts, Kagan is brilliant in the way that non-ideological thinkers are brilliant. She sees all sides. She listens to arguments. She has no apparent personal or political agenda.
Second, she is politically savvy: as the dean of Harvard Law School, she got the conservative and liberal faculty members to kiss and make up after a 20-year battle that nearly destroyed the law school. She even got the faculty to modernize the curriculum, which is much harder than getting a unanimous opinion. If she can bring those same skills to the court, she may be likely to win over some of her contemporaries, such as Chief Justice John Roberts.
Kagan won't trend left but will trend center, and that is a far better strategy than always writing in dissent. She could help moderate the court, which is what Obama understands has to happen in order to reverse the court's swing to the right. And on issues like national security and presidential power, she may be a conservative's dream. There is probably no nominee who, in private at least, doesn't delight the conservatives more than Kagan because she is about as moderate a pick as they are going to get.
But her nomination is not without its risks to the president. While her personal story is impressive, it hardly tugs at the heart strings in the way that Justice Sotomayor's story does. Kagan isn't a "Supreme Court first." She is the daughter of a New York lawyer, and while she most certainly had to overcome some gender bias on her way to court, her personal narrative is largely one of privilege. Kagan is a lawyer's lawyer—popular among the legal elite but not among baseball fans or immigrant families. Thus, by nominating Kagan, the president risks reinforcing critics who consider him a liberal intellectual who is out of touch with mainstream American values.
Third, Kagan has no prior judicial experience. This isn't necessarily a bad thing. In fact, some of the most successful justices, including Earl Warren and Hugo Black, came to the court without ever having donned a black robe. But in a world of highly politicized nominations, Kagan's lack of experience is already a rallying cry for the opposition. The spin from the White House is that Kagan comes from "outside the judicial monastery"—a phrase that captures the president's insistence that the next justice must understand how the law affects real people. While an important historical shift, it is slightly disingenuous. Kagan may not have been a judge, but she also has never represented an indigent client.
Fourth, like Sotomayor, Kagan is not without her wedge-issue baggage. While Sotomayor's nomination fueled the debate over affirmative action and identity politics, Kagan is fueling debate over homosexuality and particularly the "don't ask/don't tell" law in the military. She was one of many law school deans, including Vermont Law School's, who forbade the military to recruit on campus because of its discriminatory policy. She eventually rescinded that stance when the Supreme Court, in F.A.I.R. v Rumsfeld, by 8 – 0, ruled the policy constitutional. But her decision as dean makes her appear sympathetic to, if not an advocate of, the rights of gays and lesbians. With a country deeply divided over issues like same-sex marriage, her stance on "don't ask/don't tell" gives conservative senators an easy way to not only oppose her but to accuse the president of wanting to pack the court with activist judges who would carry out his social agenda.
This dynamic is further complicated by Kagan's personal history. She is a single woman with no children, but, unlike Sotomayor, has never been married. This fact has fueled speculation on blogs that she may be a lesbian. A single, unmarried person is always at risk of this kind of modern-day witch hunt. (Remember Harriet Miers? The White House went out of its way to get quotes about her character from former boyfriends to try to put a lid on speculation about her sexual preferences.) And so, for the first time in Supreme Court history, we are about to witness one of the most subtle, albeit most sexist, confirmation battles as the opposition tries to create innuendo about Kagan's sexuality and scare the public, further painting the president as a radical.
It is also notable that Kagan has forgone motherhood, either by default or design . There is already criticism of her for being ambitious and calculated about her career—a character "flaw" that is never attributed to men. It is not likely her nomination will spark dialogue about how women often forgo families, including children, to further their careers. It would be hard to serve as the dean of Harvard or as solicitor general with children because of the inevitable overwhelming demands and well-documented discrimination that working mothers face. Whether Kagan will be sympathetic to gender questions remains to be seen, but she will no doubt face her share of gender discrimination in its most invidious form over the next few months.
Thus, the president may not get much short-term political capital by nominating Kagan, but he'll get plenty of legacy out of it. No serious lawyer doubts that Kagan would serve the court with great distinction for many decades. In the next five to eight years, the court will likely be an extremely different one than it was just a few years ago. There is a new generation emerging and more appointments to come. Kagan is a proven leader and what this court needs more than anything else are Justices who can bring the rule of law into the 21st century. Kagan is an ideal choice to lead that transformation, which is why the president is willing to gamble on her.
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