Why Elena Kagan makes both sides nervous.

The law, lawyers, and the court.
May 10 2010 2:01 PM

The Sphinx

Why the inscrutable Elena Kagan makes everyone nervous.

Also in Slate, John Dickerson wonders how Kagan will convince America she has a special understanding of ordinary people. Emily Bazelon tears down the argument that Kagan was an extremist in her policy toward military recruiters at Harvard. Jack Shafer yearns to see an openly gay Supreme Court nominee.

(Continued from Page 1)

Six appearances before the Supreme Court don't tell us much about an advocate's ideology. Kagan was representing the Obama administration and defending federal statutes. But to the extent she betrayed her own judicial temperament in these outings, Kagan's performances reveal a good deal about the kind of justice she may be: careful, narrow, and mild.

This brings us back to Obama's announcement this morning, a statement that hammered home the two key prongs of the president's judicial vision: centrism and hating on the Roberts court. Kagan, noted Obama, is a proponent of bipartisanship, of "understanding before she disagrees" and of seeking "common ground." So far so good. But then the president tried to make her the face of opposition to the Citizens United decision, a decision so staggeringly unpopular that Obama has been campaigning against it since January. Introducing America to Kagan today, the president tried to turn her loss in that case into a big win for populism: "During her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations," Obama said, adding, "In the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

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It's a fine needle the president is trying to thread: positioning Kagan as a bipartisan consensus-builder who is also going to knock some sense into the right-wing corporate ideologues on the court. Adam Liptak has already detailed how Kagan actually abandoned Obama's legal theory of Citizens United (that "in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens") by the time she argued the case. In other words, Kagan may not hold Obama's view of the case, and she may not be inclined to campaign against it at her hearings.

It's not at all clear from her record whether Kagan will someday prove to be the Jurist for the Little Guy or the Judge Who Bridged the Partisan Divide. There is ample evidence in her professional and academic record that she has ably managed to do both at different times, depending on the professional position she held and whose views she was representing. We will hear a good many testimonials in the coming weeks that Kagan has the heart of a progressive lion and the political skills of a diplomat. What remains to be seen is whether she will put the former to service in the interest of the latter—or vice versa.

Slate V: Kagan is announced as the nominee

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