Elena Kagan

I've had about forty-eight hours to mull over the nomination of Elena Kagan to fill the vacancy on the Supreme Court, ingesting all of the news reports and blog spoutings, and I still don't know what I think. Certainly there's no evidence to suggest she will be some liberal lion in the mold of Thurgood Marshall, whom she clerked for, but you never know. The key to the whole thing is nobody seems to know, except perhaps the president.

After two nominations, it's clear to me that President Obama has no interest in finding the next Marshall or Brennan or Douglas. He's a consensus builder down to his bones, and seems to value Kagan's abilities as a political animal. She participated in many Democratic campaigns over the years, and was a staffer in the Clinton White House. She's no right-winger.

But she also is not, outwardly, a fire-breathing liberal. Most of the caterwauling about her nomination has come from the left, focusing on a remark she made during her confirmation hearings that suggests she supports the detention of enemy combatants without any rights (a galling prospect, considering the man she would replace, John Paul Stevens, was a champion of due process of law in this regard). Supporters of hers say that isn't true, and we once again are faced with the bizarre circumstance of the White House reassuring the left that she's a bona fide liberal while telling the right that she's a reasonable centrist.

Certainly there's not much to go on. Though she has spent most of her legal career in academia, there's not much of a paper trail. In some respects it seems she's been planning her whole life for this--friends say her ambition even as a young woman was to be a Supreme Court justice--and she has left a scarce printed record accordingly. Ever since the Bork nomination of 1987, prospective justices have been valued for the ability to appear like Sphinxes, not revealing their opinions or leaving any evidence of them. The slightest utterance, like Sonia Sotomayor's "wise Latina" remark, can provide grist for hours of numbing questioning by skeptical senators. With Kagan, their is little grist.

The Republican response has been contrarian but muted. I doubt that they would attempt a filibuster in this case, so her confirmation is all but assured. They may secretly be happy that Obama did not nominate a liberal hero, such as Diane Wood, Harold Koh, or Pamela Karlan, who would have generated a fight but would have been a much more reliably liberal justice. The main Republican objection is to her lack of experience, which is only partly correct. Many justices, including Louis Brandeis, William O. Douglas, Earl Warren, and William Rehnquist, did not have judicial experience before taking their seats on the Court. But Kagan does have very limited litigation experience, which I think is valuable. She has argued six cases before the Supreme Court as Solicitor General (her only six appearances in any court anywhere), so perhaps that's enough.

What has me feeling okay about the nomination is though there is no visible evidence of Kagan's liberalness, Obama and Biden know her (she worked for Biden when he was on the Judiciary committee). I trust that they know what she's made of, and went with her despite an obvious liberal reputation because they have inside information. Obama seemed to be saying "Trust me on this one," and I will.

The odd, gossipy component of Kagan's nomination is the rumors concerning her sexuality. Many, irresponsibly, have accepted at face value that she is a Lesbian, based on one source. The White House and those who know her have denied this. Of course her sexuality is irrelevant, but it's interesting how in this culture a never-married fifty-year old person raises eyebrows. I'm forty-nine and have never been married, and I'm not gay. Sometimes I wish I was, it would explain things easier, but no, I'm into women. Kagan's private life is her own business.