Confirm Elena Kagan

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Sunday, July 4, 2010

OVER THE COURSE of her Supreme Court confirmation hearing, Elena Kagan showed herself to be an intellectually gifted person with an impressive grasp of a wide array of legal matters. She exhibited an admirable judicial temperament that allowed her to stay cool and engaged despite at times hostile questioning. The former Harvard Law School dean and current U.S. solicitor general should be confirmed, and by a wide margin.

Like so many nominees of the modern era, Ms. Kagan often resorted to legal sleight of hand by providing nonresponsive answers that obscured rather than clarified her views on specific issues. This was true whether she was discussing the Commerce Clause and health-care reform, same-sex marriage, gun rights, or the First Amendment and campaign finance restrictions. This was understandable: It is important that judges not commit to votes in advance; they must keep an open mind and decide cases only on the specifics of the controversy before them. Yet the process was not useless in that it gave senators and the public a sense of Ms. Kagan's intellect and mastery of the subject matter.

Ms. Kagan did provide genuinely helpful glimpses of her views on judging. She agreed that the umpire analogy advanced by Chief Justice John G. Roberts Jr. during his 2005 confirmation hearings is apt is some respects; judges, like umpires, must be impeccably fair and never play favorites. But judging is not as "robotic" as calling balls and strikes, Ms. Kagan correctly asserted. This is particularly true with the kinds of difficult cases that land at the court, cases in which precedent and text may provide guidance but no definitive answers. Ms. Kagan also argued that the principles ensconced in the Constitution "were meant to be interpreted over time, to be applied to new situations and new factual contexts."

This approach may not sit well with conservatives, but it is not a reason to vote against her. Presidents -- Republicans and Democrats alike -- should be given significant deference in choosing nominees. Ms. Kagan's judicial philosophy appears to be left of center but unquestionably within the mainstream.

Ms. Kagan's handling of on-campus military recruiting while dean of the Harvard Law School should likewise not be disqualifying. Ms. Kagan clearly abhorred the "don't ask, don't tell" policy. She denied military recruiters access to the school's Office of Career Services but allowed them to reach students through on-campus veterans groups. The Supreme Court unanimously -- and correctly, in our view -- concluded that this approach did not fulfill Congress's intent to guarantee military recruiters full and equal access to students, at which point Ms. Kagan reversed her stance. Contrary to some critics' assertions, Ms. Kagan never banned military recruiters from campus, nor did she show hostility toward those in uniform.

Throughout her career, Ms. Kagan has been more of a pragmatist than an ideologue, the type of person who not only tolerates but invites and appreciates diversity of opinion. In her work as a policy adviser in the Clinton administration, she consistently pushed for positions that were moderate and achievable. As solicitor general, she was -- as required -- an unflinching advocate for congressional dictates and presidential prerogatives, especially in the national security arena. Yet she seems to understand that such advocacy must be left behind once the robes are donned. She has earned the respect of liberals and conservatives for her intellect, integrity and inclusiveness. Such qualities will serve her and the country well on the high court.


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