Monday, May 10, 2010; 12:00 AM
The Post asked legal experts for their quick reactions to the announcement that President Obama will nominate Solicitor General Elena Kagan for the Supreme Court. Below are contributions from , Anita F. Hill, Benjamin Wittes, Edward Whelan, Jack Goldsmith, Erwin Chemerinsky, Walter Dellinger, Maria Echaveste, Patricia Wald and John Anthony Maltese.
ANITA F. HILL
Professor of social policy, law, and women's studies at Brandeis University
If President Obama is going to address the public's desire for government that better represents our country, the Supreme Court is a great place to start. Thus Elena Kagan's nomination ought to be applauded. She brings to the process a brilliant mind, a stellar legal background and a strong commitment to public service. Justices with careers outside of the federal judiciary can help infuse the court with new ideas and fresh perspectives on the "real world" significance of the legal issues our country faces. And opening the process affirms the value of experiences available to a wider range of people, including the poor, women and people of color.
I don't pretend to know Kagan's judicial philosophy. Given much of the commentary I've heard and read, however, I suspect that there are many who think that they do. In the coming weeks and months, those who fear she may disagree with them on hot-button legal issues will argue that Kagan's lack of time on the federal bench is an automatic disqualifier. It is not, nor should it be.
Only a thorough and rigorous confirmation process will determine whether Elena Kagan should be confirmed to the Supreme Court. But as I argued shortly after Harriet Miers's failed nomination, the American public deserves more than a smoke screen in the form of a summary dismissal based on a qualification that two of the last four Supreme Court chief justices (William H. Rehnquist and Earl Warren) failed to meet.
Senior fellow in governance studies at the Brookings Institution; author of "Confirmation Wars: Preserving Independent Courts in Angry Times"
Elena Kagan, like the three sitting members of the Supreme Court whose nominations immediately preceded her, warrants confirmation in a matter of hours. Like John Roberts, Samuel Alito and Sonia Sotomayor, she is obviously smart, capable and well-qualified, and her views obviously fall within the diverse streams of thought that make up the bread and butter of the American approach to the rule of law. The Senate and the public know everything they need to know to vote on her confirmation today.
Yet needless to say, like her three predecessors did, Kagan has a different future awaiting her. She will face a hot summer full of rhetorical blunderbuss about gays in the military and military recruiters on campus. She will face the inevitably silly and fruitless efforts to plumb the depths of her "judicial philosophy" -- which will turn out to be a crude effort to find out how she would rule on specific hot-button issues. And at the end of the day, the Senate will confirm her by more or less the same margin as it would confirm her if it voted today. We will have learned nothing about what sort of justice she will be -- just a lot about how she handles a confirmation process that bears not a whit on her ultimate job performance.
Like Roberts, and unlike Alito and Sotomayor, Kagan brings a certain amount of stealth to the confirmation process. She's written relatively little, and few people know her specific views on a great many issues. By the end of this process, we will pretend to know a great deal more. But the pretense will be thin. She will still be a blank slate -- and they will still be voting on a combination of instinct and partisanship.
President of the Ethics and Public Policy Center; former clerk to Justice Antonin Scalia
Just as surgical experience provides the best training for being a master surgeon, judicial experience provides the best training for being a Supreme Court justice -- at least, that is, if one were looking for justices who are adept at interpreting the law dispassionately rather than imposing their own subjective sense of empathy. But even if attacks on the "judicial monastery" were sound, it is difficult to see how Elena Kagan's career in the elite world of legal academia could be further removed from the real-life experiences of most Americans.
What explains the striking gap between President Obama's populist rhetoric about what he was looking for in a justice and the reality of the Kagan pick? In part it may be that Obama's outlook has itself been so shaped by the academic milieu that he doesn't understand how alien that environment is to most Americans -- how, for example, anyone could look askance at kicking military recruiters off a college campus while U.S. soldiers are risking their lives abroad to defend us.
It may also be that Obama's rhetoric was camouflage for picking a justice who would both rubber-stamp his massive effort to transform the relationship between government and the American people and continue the liberal judicial activist project of inventing constitutional rights that entrench the policy positions of the left.
Professor at Harvard Law School; head of the Justice Department's Office of Legal Counsel from 2003 to 2004
Elena Kagan will make an outstanding Supreme Court justice. Kagan has had an extraordinary legal career. After graduating magna cum laude from Harvard Law School, she clerked for Thurgood Marshall at the Supreme Court; practiced law at the superb Williams & Connolly firm; did legal and policy work in the White House; taught administrative law, labor law and civil procedure, and was a First Amendment expert at Chicago and Harvard law schools; was Harvard's dean; and served as solicitor general. Kagan excelled in all of these roles and has emerged from them deeply knowledgeable about the issues that come before the Supreme Court.
Kagan also has the intellectual and temperamental qualities to make a great justice. She is very smart. She is a careful lawyer. She sees legal problems in the round and thinks about them clearly and honestly. And as her transformative deanship illustrates, she has an amazing capacity to bridge disagreement. She does this by listening to all sides, engaging colleagues frankly and empathetically, patiently seeking consensus and exercising judgment openly and with good reasons. These qualities will serve the nation well on a court that adjudicates our most contentious and divisive legal issues.
Founding dean of the School of Law at the University of California at Irvine
No one is surprised that Elena Kagan is President Obama's pick to replace Justice John Paul Stevens. Like Sonia Sotomayor last year, she is someone sure to be confirmed by the Senate and will require little of the president's political capital. Kagan is impeccably qualified. Unlike other recent nominees, she has a small paper trail. She's never been a judge, so there are no prior opinions to scrutinize. She's written only five major law review articles, and none are controversial.
On the other hand, that is the risk in Obama's selection of Kagan: no one is sure of her views on key issues. Presidents who have picked nominees without a paper trail often have been stunned by the results. David Souter, for example, had been a justice on the New Hampshire Supreme Court, but no one knew where he was on the ideological continuum. He deeply disappointed Republicans after being selected by President George H. W. Bush when he turned out to be a fairly liberal justice. No one knows whether Kagan will be as liberal as Stevens, more conservative or even more liberal. And no one will know until she's on the high court.
Head of the Office of Legal Counsel in the Clinton administration; partner at O'Melveny & Myers
Elena Kagan is, first and foremost, a really good listener, one who can appreciate the arguments for positions with which she does not initially agree. Those who engage with Elena come away with a sense that she has worked hard to understand what they believe and why.
She will be influential. Her intellectual style is tough but fair. As solicitor general, she has stood her ground in response to questions from the bench, and the same easy comfort she exhibited as an advocate will serve her well when she engages in dialogue with the justices as their newest colleague.
Thoughtful conservatives are drawn to her not for her policy views but because of the qualities she brings to discourse and decision. Having been one of the most successful law school deans of the past quarter century and having presided over the solicitor general's office, she appreciates the values of pragmatism. And having served in the White House and Congress, she understands the necessities of workable government.
Although her progressive values have led her to serve in both policy and legal positions in the past two Democratic administrations, she appreciates the difference between being an advocate and being a judge.
Her engaging personality will make her a lot of fun for her fellow justices. Although she's no Jon Stewart, she does have a pretty decent sense of humor. And she unfailingly treats all of those she encounters, regardless of their station in a life, with respect. That, too, is a valuable quality for a justice to possess.
Former deputy chief of staff to President Bill Clinton; founder of the government relations firm Nueva Vista Group
President Obama's nomination of Elena Kagan appears a safe choice. She is relatively easy to confirm (but, perhaps, for the military recruiter issue or the tobacco issue). Yet with this nomination, Obama has broken a forty-year tradition, and high time. By nominating a person with excellent credentials but no experience as a judge, he is making good on his commitment to name individuals who have real-life experience with how law matters in the daily lives of Americans.
Critics will say that Kagan is an ivory-tower academic out of touch with the everyday concerns of people across the country. But Kagan is not just an academic. I worked with her in the Clinton White House and participated in a number of meetings in which policy choices were often constrained not just by legal considerations, but also political context and partisanship. The trade-offs and consensus building of those experiences provide a good foundation for what I believe will be an important role for her on the Supreme Court, finding common ground among disparate views so that our nation continues its slow but steady progress toward realizing its ideals.
Former chief judge of the U.S. Court of Appeals for the District of Columbia
The nomination of Elena Kagan as an associate justice carries the promise of a new voice on the Supreme Court. Together with last year's addition of Justice Sonia Sotomayor, her nomination also heralds the beginnings of a new generation of justices schooled in the tough arts of practicing law and, in Kagan's case, making policy in the executive branch.
New justices usually bring a new dynamic to the court, even when they do not change the majority/minority calculus, and Kagan is a particularly good candidate to do so. She won her spurs as a feisty yet engaging litigator and a rigorous administrator, both at the White House as associate counsel under President Clinton and at Harvard Law School as dean. As a result of her last year as solicitor general, she has gained an intimate familiarity with how the other justices think and decide cases; it is unlikely she will be overwhelmed or relegated to a back seat in arguments or deliberations. Her age gives her plenty of time to grow and develop. Her exposure to both lawyering and policymaking gives reason for optimism that she will combine fidelity to the law with an appreciation of its consequences on the ordinary people that law is supposed to protect.
An important question remains as to what her thoughts on the judicial role and constitutional discourse are once she no longer is an advocate for the president. It is encouraging that she began her career clerking for the likes of Ab Mikva on the D.C. Circuit and Thurgood Marshall on the Supreme Court, and the confirmation process, if astutely managed, should answer some of those very relevant questions. She and the American people deserve a speedy and thoughtful but probing confirmation inquiry on how she sees her role in the critical times ahead for the Supreme Court.
JOHN ANTHONY MALTESE
Author of "The Selling of Supreme Court Nominees"; head of the political science department at the University of Georgia
Elena Kagan is the first nominee to the Supreme Court since William Rehnquist in 1971 with no previous experience as a judge. Both also wrote law review articles early in their careers urging senators to ask court nominees probing questions about specific legal issues. As Rehnquist put it in the Harvard Law Record in 1959: "If greater judicial self-restraint is desired, or a different interpretation of the phrases 'due process of law' or 'equal protection of the laws', then men sympathetic to such desires must sit upon the high court." For the Senate "to learn of these sympathies," Rehnquist argued, senators must press nominees to discuss their views.
Kagan echoed that sentiment (and cited Rehnquist) in a 1995 article in the University of Chicago Law Review. Senate confirmation hearings, she wrote, "ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct. The kind of inquiry that would contribute most to understanding and evaluating a nomination is -- discussion, first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues."
Reminded during his confirmation hearing about his call for strict scrutiny of nominees, Rehnquist elicited laughter from the audience by dryly noting: "I did not fully appreciate the difficulty of the position that the nominee is in." Kagan will soon find herself in a similarly difficult situation. Then she may long for the days when Supreme Court nominees not only did not testify, but maintained complete public silence while the Senate considered their nominations.
The seat President Obama nominated Kagan to fill was once occupied by Louis Brandeis. When cornered by a reporter from the New York Sun in 1916 and pressed for a comment about his nomination, Brandeis replied: "I have nothing to say about anything, and that goes for all time and to all newspapers, including both the Sun and the moon." For better or worse, Kagan will not have that luxury.