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.

Elena Kagan. Click image to expand.
Supreme Court nominee Elena Kagan

Now that Elena Kagan is officially the White House's Supreme Court nominee, pundits have launched themselves into their CSI-worthy project of sorting through tiny filaments of evidence for her true ideological views. With no judicial record to pore over, and some of the wonkiest law-review articles ever penned to her credit, Kagan has mastered the fine art of nearly perfect ideological inscrutability. Even Jeffrey Toobin, her law school study partner, has virtually no idea what she really believes. That only makes us more determined to sift through the dry-cleaning slips and the Post-it notes to try to guess at who the real Elena Kagan might be. And since she has been hard to know, we struggle to find someone else we might compare her to. Paul Campos, a law professor at the University of Colorado, has (fairly ridiculously) compared Kagan to Harriet Miers. Andrew Cohen has compared her to Chief Justice John Roberts.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

So we've begun another round in the judicial confirmation game of "my trace DNA evidence is better than yours." A letter Kagan   co-authored in 2005 condemning a court-stripping proposal for suspected terrorists at Guantanamo Bay will hearten the left. Her statement at her 2009 confirmation hearing that the president could detain enemy combatants without trial will make liberals very nervous. Kagan's refusal to find a right to same sex-marriage in the Constitution may provide some small comfort to conservatives. But the fact that she was strongly and vocally opposed to military recruitment at Harvard Law School until the courts forced her to rescind her policy suggests a willingness to fight for liberal causes. We will debate the ambiguous evidence of Kagan's views on executive power for weeks without knowing much of anything. (Here's her 2001 Harvard law-review article on a version of the unitary executive theory. You'll want to commit that to memory.)

It's not quite that Kagan offers something for everybody. It's more that she offers nothing, so there is something for everybody to wail about.

What nobody disputes about Kagan is that she is terrifically intelligent, an able manager, ambitious, and well-liked and that she was all that and a wheel of brie when it came to sorting out the problems she inherited as dean of Harvard Law School. She ran the most successful fundraising campaign in law-school history and attracted important right-wing thinkers to campus. Nobody (beyond Glenn Beck) has ever accused Kagan of being a liberal firebrand or a wild-eyed idealist. And while some of her supporters suggest that she may prove far more liberal than anyone expected, another Kagan fan told Nina Totenberg this past weekend that "Elena is the single most competitive and most inscrutable person I have ever known."

It's perfectly clear that Kagan brings the same qualities to the court that Obama prizes in politics generally: She has staked her professional career on reaching across the aisle and showing respect for all viewpoints. It's one of the reasons her greatest fans include Ted Olson and Charles Fried. And that's why the interesting question is how serious the GOP effort to scuttle her nomination will be. Yes, they are already muttering about her inexperience and her rampant Harvard-ness. But ultimately, how do you wage an epic world war over a constitutional sphinx? 

This morning, Bob Schieffer predicted that the confirmation fight to get Kagan onto the high court will be "a really bitter and vicious one." While she was eminently qualified, he said, he noted that it's an "especially toxic election year." On the very same show, however, CBS legal correspondent Jan Crawford predicted that the battle would not be contentious at all: "She's very engaging very challenging, she's quite dynamic in her personality," she said, "and you see that when she's arguing cases before the Supreme Court. The justices really like her —you should see Justice Scalia (obviously a conservative) and Kagan going back and forth."

I confess that I haven't always seen Kagan as enormously successful with the court's conservative wing, although she has always been conversational and collegial with them. That's largely because one has to argue before the court dozens of times to become truly expert at it, and Kagan's first oral argument at the high court last fall was also her first oral argument, period. In her total of six arguments at the Supreme Court, some of us have seen less playful banter than all out friction, most notably between Kagan and the chief justice. And it's not clear to me that she's had a profound influence on Justice Kennedy's views yet, either. It can be true, from my observation, that the justices are hardest on the lawyers they like best and trust most. But it's hard to see Kagan's performances thus far at oral argument recommending her for the court.

That said, I'm not certain excellence at oral argument always predicts judicial excellence, and it's possible that the qualities (or lack thereof) Kagan has brought to her role as solicitor general make her an even more attractive justice. Just as some have argued that Kagan's lack of important academic scholarship makes her better suited for the court, there is a strong argument to be made that Kagan's understated, even mellow, outings as SG show that she will approach the job of Supreme Court justice just as Obama would wish: open-minded, scrupulously fair, and always willing to concede error (so much so that she has sometimes been faulted for giving too much ground on Citizens United). She is always measured and polite. In fact, if you listen to her oral argument  in the Citizens United case, you may well be struck by the fact that it's Roberts who plays the role of oral advocate while Kagan seems to be striving for cautious centrism.

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."

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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