By Howard Kurtz
Washington Post Staff Writer
Tuesday, May 11, 2010; 8:38 AM
Having more or less survived her initial journalistic vetting, the question for President Obama's high court nominee is: Will Elena Kagan turn out to be a wise Jewish woman?
Meaning, is there some ill-considered phrase in her past -- especially on videotape -- that will complicate her confirmation?
If Kagan hasn't uttered the equivalent of Sonia Sotomayor's Latina remark, her lack of a paper trail will most likely insulate her from carping conservatives, both on Capitol Hill and in the media. In fact, the harsher critique thus far, especially online, seems to come from the left.
I hereby declare Kagan to have won the Invisible Primary. That's the one conducted by insiders, journalists and bloggers before a president even settles on a nominee.
Kagan's substantive weakness is her greatest strength, the glaring fact that she's never been a judge. That, as you know, is not a requirement -- neither had William Rehnquist and other famous jurists -- but look for some Republicans to rip her for inexperience. But that also means the solicitor general doesn't have a lengthy record of judicial decisions that can be strip-mined for controversy.
In fact, the former Harvard Law dean seems to have skirted strong stands on almost every hot-button issue except one: gays in the military. In restricting recruiting at the Cambridge, Mass., school, she said: "I abhor the military's discriminatory recruitment policy. . . . This is a profound wrong -- a moral injustice of the first order."
Well, here's some possible fodder. Nina Totenberg reports on a 2005 letter that Kagan and three other law-school deans wrote to the Hill, slamming a Lindsey Graham proposal to strip courts of the power to review what happens to Gitmo detainees: "When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless."
That won't help get Graham's vote. As things stand now, Kagan's move against the military will be the action she'll have to defend. But don't-ask-don't-tell is far less controversial than it was in the Clinton era; witness the muted reaction when Robert Gates said he would abolish the policy.
Critics could go all the way back to her thesis at Princeton, where she wrote of the Socialist Party: "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." But she didn't exactly brand herself with a scarlet S.
There was a flare-up, which I've covered, when blogger Ben Domenech speculated that Kagan is gay and the administration not only denied it, officials hit back hard against CBS News for putting Domenech's post on its Web site. Perhaps the idea was to shut down any more media chatter about Kagan's personal life.
While naming a woman lacks the wow factor of Ronald Reagan appointing Sandra Day O'Connor, the fact that the court would have three women for the first time would certainly bring it closer in line with modern society.
And there's something to be said for a nominee from outside the so-called judicial monastery, though Kagan can hardly be sold as a true outsider.
So now comes the usual dance in which the opposition party demands detailed positions and the nominee bobs and weaves -- a process that Kagan, 15 years ago, dismissed as a "vapid and hollow charade," even a "farce." The bottom line is that the Democrats have 59 senators and the Republicans have signaled they would consider filibustering only a candidate they consider to be outrageous. But that doesn't mean the GOP won't rough her up in the process.
Will there be a conservative media campaign against Kagan? Rush called her a "leftist radical," but Bill O'Reilly says it's just a case of "one liberal replacing another" and Brit Hume predicted swift confirmation. The strongest argument against her came on Rachel Maddow, from Salon's Glenn Greenwald, who called Kagan "a complete blank slate."
The MSM reaction has been overwhelmingly positive, particularly on the network newscasts. And some senior White House official -- my money's on Ax -- has been telling network types on background that Kagan has the intellectual heft to go up against Roberts and Scalia.
"Her selection touched off a debate about whether her résumé as an academic, a government official and, for one year, the federal government's chief advocate before the Supreme Court qualified her to join it," says the NYT. "Although many justices have joined the court with no prior service as a judge, Ms. Kagan would be the first in nearly 40 years."
The "audacity of caution," says Politico's Glenn Thrush.
At Slate, Emily Bazelon says Kagan's lack of judicial experience "means she -- and the White House -- don't have to worry about explaining a lot of persnickety legal opinions. You know, the kind that would prove she actually would be the sort of justice that Obama's Democratic base would like. In fact, Kagan has no obvious paper trail that makes for sound-bite attacks. Her academic articles are ponderous and abstruse, not Fox News fodder. And she has managed to work in both the Obama and Clinton administrations without marking herself indelibly as a liberal. That turns her lack of judicial experience into an asset.
"True, she's not an outsider in the mold of, say, Earl Warren or Sandra Day O'Connor -- she doesn't bring real-world political experience, as they did. (Warren was governor of California, while O'Connor served in the Arizona state senate.) She came to her present job from the deanship of Harvard Law School. This is a different kind of alternative path: It comes straight out of the Ivy League elite but skips the usual last step of federal appellate judge. So much for the Republicans' success in denying Kagan a spot on the D.C. circuit in 1995.
"Kagan also has the virtue, politically speaking, of not being the choice of the left. Salon's Glenn Greenwald, who thinks she will be to the right of retiring Justice John Paul Stevens on executive power, has been gunning for her since Stevens announced last month he would step down."
Salon's James Doty says Kagan is a lefty, all right:
"Over the past several weeks, a chorus of progressive voices has portrayed Elena Kagan -- whom President Obama is expected to nominate for the Supreme Court on Monday -- as an intellectual cipher. She may be smart, they argue, but she has provided few clues about her thoughts on any major legal issues and even fewer about her judicial philosophy. Even worse, her critics claim, what we do know about Kagan's beliefs suggests that she is sympathetic to Bush-style arguments on executive power and thus, on at least one major issue, threatens to move the court significantly to the right. These criticisms are, at the very least, dramatically overstated. A review of Kagan's professional record and writings suggests that she would fit comfortably on the left-hand side of the judicial spectrum."
To wit: She was a researcher for Larry Tribe! She worked on the Dukakis campaign!
Still, as this Nation post by John Nichols indicates, Kagan is not liberal enough for some on the left:
"For the most part. . . . the conservative criticism rings hollow. The general sense is that Kagan would be more cautious and far more centrist than Stevens, a Republican appointee who eventually became the steadiest liberal on the court.
"The point here is to suggest that Kagan is some kind of closet right-winger. Her record does not suggest that. Unfortunately, the same record that does not suggest Kagan is a right-winger also does not suggest that she is serious about controlling against excesses and abuses by the executive branch.
"At least initially, the question progressives should ask is whether Kagan is an adequate replacement for Stevens -- especially on the critical question of restoring the system of checks and balances that was so severely battered during the Bush years."
Let's move to the right side of the spectrum. Bill Kristol is out there proclaiming a "key obstacle":
"Her hostility to the U.S. military.
"Hostility? Isn't that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions -- embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court -- and her words?. . . .
"Many important people are complicit in what Kagan regards as the 'moral injustice of the first order' of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military.
"So Kagan needs to be asked: Why doesn't this reflect hostility to the military?"
Kristol did say on Fox that Kagan was gracious toward him when he spoke at Harvard.
At Hot Air, Ed Morrissey says Kagan's résumé doesn't measure up:
"Kagan may have had a sterling reputation as a law school dean, but as a jurist, she's a mediocrity simply on the basis that she has no experience at all in that position. There is an argument to be made to appoint people outside of the realm of judges to the Supreme Court to get real-world perspective (the Constitution doesn't require that an appointee be an attorney, let alone a judge), but very few people would look at Kagan's career as anything but academic and insider politics. While Kagan may be the least objectionable of Obama's potential appointees, the truth is that she's a lot like Obama -- an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV. Republicans who oppose Kagan should focus on those shortcomings."
National Review's Ed Whelan also plays the inexperience card:
"I have plenty of respect for Kagan's intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill. But. . . .
"Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own 'threshold' test of the minimal qualifications needed for a Supreme Court nominee. . . .
"Kagan shows signs of moderation on issues of presidential power and national security. But there's no basis for hopes that she might secretly harbor conservative legal views on other matters."
The Atlantic's Marc Ambinder sees more liberal dissatisfaction:
"The more intense fire will come from the activist left, whose representatives have already voiced objections to Kagan's record of jurisprudence, her Cantabrigian clubbiness, her record on diversity, and the way that she seems to have constructed her career to leave as little in the way of a paper trail as possible. Remember, all judicial battles are fought on the right's terrain, so Democratic judges always have to pledge fidelity to a legal formalism they don't really believe in. As long as the Democrats have the votes, Republicans will have to grudgingly accept that this is the reality behind confirmation-process appearances."
As the Democrats did with Roberts and Alito, who turned out to be far more consistently conservative than they let on as nominees.Personal questions
As a number of bloggers noted, popular Google searches Monday included "elena kagan husband," "elena kagan personal life" and "elena kagan married."
The nominee's marital status, and even her sexual orientation, is a legitimate question, says Andrew Sullivan:
"Did Obama shy away from Sotomayor's ethnicity? So why is it somehow unseemly or a function of 'whispers' to ask an obvious empirical question to which there is an empirical answer?. . . .
"I am asking in the same voice and with same decibels as I would ask any question of a public official who may, in fact, rule at some point on the very constitutional grounds of my own civil marriage. The only thing that could conceivably put this question into the zone of 'whispers' and 'privacy' is homophobia -- and yes, that means the homophobia of liberal journalists."
From another perspective, the American Family Association which says the media "have a solemn responsibility to do one thing: ask her directly and openly and in front of the American people: Are you a lesbian?. . . . If you were falsely accused of engaging in sexually aberrant behavior, would you waste a single minute challenging such a scurrilous rumor?"
Aberrant? Scurrilous? Seriously?Today's Tiger
Mike Celizic questions the extent of Tiger's neck injury:
"He quit Sunday in the final round of the Players Championship. Picked his ball up on the seventh hole, said his neck hurts, and didn't even walk off the course. He climbed in a golf cart and rode off into the metaphorical sunset. . . .
"He probably is injured. He's abused his body for years, not by boozing and partying but by working it too hard. All that running and weight lifting and practicing is catching up with him. The knees have already started to disintegrate and now the back is apparently protesting.
"But let's be honest about this. If Tiger was anywhere near the lead and playing like he used to, there's no way he walks off the course unless his neck is truly killing him. This is the guy who won the U.S. Open on a broken leg and wrecked knee. Playing through pain is not a problem, not if there's a trophy waiting at the end of the round. . . .
"It used to be there was nowhere else he wanted to be more than on a golf course. Now, he can't get away from the course fast enough."
Howard Kurtz also works for CNN and hosts its weekly media program, "Reliable Sources."