President Obama has announced the nomination of Elena Kagan to the Supreme Court.
I can’t say it surprises me in any way, nor should it—this was telegraphed for quite some time—and I don’t think that this nominaton (or any other nomination he would have offered) is in any peril of not being approved by Congress. Nor do I think there’s any chance Kagan will become anything other than a reliably liberal vote on the Court.
Kagan represent several types of diversity: a woman, Jewish, and (if rumor be true—I have no idea whether it is and couldn’t care less either way) a lesbian. Whether these facts will inform her decisions (in the manner of that “wise latina,” Sotomayor) is anyone’s guess, since Kagan also would be the first Supreme Court Justice in nearly forty years with no judicial experience.
Here’s some further background on Kagan. In many ways, she sounds like a white, female Obama (or at least, Obama as he was presented to us during the campaign), albeit with somewhat better credentials. She’s known for “building consensus” and is generally pretty well-liked, although described as very strategic in her climb to the top. For a supposed legal scholar, her paper trail is almost as sparse as our president’s (and that’s saying something). She’s a Harvard Law graduate, worked as one of the Law Review’s editors (although not head honcho), and taught at the University of Chicago Law School at the same time a certain Barack Obama was there, although she was a full professor in a tenure track position (later becoming Dean of HLS). She’s been affiliated with some of the same boosters (judge Abner Mikva of Chicago in particular). And she’s even been a smoker, like Obama.
Although Kagan has kept pretty mum on politics, there are huge clues that she is very liberal. She was raised in the bosom of New York liberalism, and in one of her rare unguarded moments she divulged the following:
She had spent the summer of 1980 working to elect a liberal Democrat, Liz Holtzman, to the Senate. On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Ms. Holtzman lost to “an ultraconservative machine politician,” she wrote, named Alfonse D’Amato.
“Where I grew up ”” on Manhattan’s Upper West Side ”” nobody ever admitted to voting for Republicans,” Ms. Kagan wrote, in a kind of Democrat’s lament. She described the Manhattan of her childhood, where those who won office were “real Democrats ”” not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”
No surprise whatsover there, either. Nor is it a surprise that Kagan wrote her Princeton thesis on the history of the American socialist movement from the beginning of the 20th century to the mid-thirties, under the direction of Sean Wilenz:
She titled the thesis “To the Final Conflict: Socialism in New York City, 1900-1933,” and used the acknowledgments to thank her brother Marc, whose “involvement in radical causes,” she wrote, “led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”
In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States ”” a loss that she attributed to fissures and feuding within the movement. “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote.
If that sounds like a defense of socialism, Mr. Wilentz insists that is not the case.
“She was interested in it,” he said. “To study something is not to endorse it.”
Absolutely correct. But the rest of the quotations from Kagan on politics suggest she is indeed a woman of the left, although how far to the left is unknown. Like Obama, she has been careful to keep those politics well-hidden, and that makes it possible for the left to consider her too far to the right, and the right to consider her too far to the left. I happen to think the latter opinion will be the one that pans out as time goes on and she rules on the law as a Supreme Court Justice. But I also happen to think that anyone Obama would have nominated would have been, likewise, a person of the left.
That was a foregone conclusion from the moment of Obama’s election. In fact, it was one of the things I feared even before his election, when it looked as though he would be the winner and part of a huge Democratic wave:
That brings to mind the sort of thing I’m most concerned about this election””what Democrats (or any one party) can do with power. It’s not so much the possibility of an Obama Presidency””although that would be bad enough””but the possibility of an Obama Presidency plus a Congress so strongly Democratic that it might even be filibuster-proof. That combination could do very serious damage indeed. It’s also likely that several Supreme Court Justices will be appointed by the next President, which in the case of Obama would skew the makeup of the Court towards liberal activism for decades to come.
This is the prospect we face: all three branches dominated by the liberal side of the political coin, with no checks on their power but the ability of the people to vote them out next time in two of the branches. Even in the early years of the Bush administration when Republicans controlled all three branches of government, the conservative majority in the Court was very iffy and the breakdown in Congress was very close (at times a tie in the Senate). This time the power of the Democrats is likely to be far greater than that.
Speaking of “decades to come,” we get to one of the main reasons for the Kagan pick: her age. She’s fifty, and likely to be on the Court for a long long time. That is very much part of the Obama calculus in nominating her. The Democratic dominance of Congress may come to an end in 2010, and the presidency might change hands in 2012. But the composition of the Court is not subject to those vagaries, but only to the health of its Justices. Say what you will about John McCain; had he been elected, we would almost certainly have had a strongly conservative Court that would have lasted for decades. Now we will not, and that will be one of Obama’s lasting legacies.