Tom Goldstein on the Kagan Nomination

By John Ballard

This list by Tom Goldstein in The New Republic is a good summary of what to expect (or not). The same essay is cross-posted at SCOTUS Blog.

The Ten Biggest Issues Elena Kagan Will Face

1. Qualifications; breadth and depth of experience. Kagan has never been a judge. She has spent very little time as an advocate. Her exposure to the judicial process is thus largely academic. On the other hand, she held significant positions in the Clinton Administration�s domestic policy operation. That gives her real experience in policymaking and the legislative process. Her qualities and success as Solicitor General will be debated, but the legal issues are too nuanced to take hold in the public mind. Supporters will focus on the fact that Kagan is uniformly regarded as very intelligent; clearly up to the job. She has held among the law�s most prestigious positions: Dean of Harvard Law School and Solicitor General.

2. Ideology. Conservative opponents obviously will attempt to frame her as extreme, but Kagan has a short track record that makes that almost impossible. It is ironically the left that is most worried. Some inferences come from her professional choices. Kagan clerked for the very liberal Thurgood Marshall. She twice put her academic career on hold to join Democratic Administrations. Her public remarks on ideological questions are limited, but uniformly on the left or center, not on the right.

3. Ability to work with conservatives. Kagan was well known for bringing peace to the fractious Harvard Law School faculty and leading the drive to hire high-profile conservatives to balance the faculty. Look for prominent Republicans, including but not limited to Reagan Solicitor General Charles Fried, to support her vocally and rebut claims that she is very liberal. Supporters will point to this quality in particular as creating the prospect that she can move some conservative Justices to the left in certain cases.

4. Gays in the military and Don�t Ask Don�t Tell. As discussed in detail in this post, Kagan strongly supported the application to the military of the law school�s longstanding bar to on-campus recruiting by all employers who discriminate against homosexuals. Look for opponents to attempt to describe Kagan�s position as anti-military; supporters will respond with Kagan�s public remarks and veterans who are supporters. Opponents will also attempt (and fail) to establish that she undermined the defense of DADT.

5. Executive power and the war on terror. Some liberals criticize Kagan for supposedly advocating a Bush-like view of Presidential power; some conservatives have held fire on that basis. That impression of Kagan will change substantially.

6. Detailed answers to Senators� questions. Kagan wrote a scathing article criticizing Senators for not requesting, and nominees for not giving, detailed answers to specific questions about specific issues. Kagan will presumably take the approach of all recent nominees and say as little as possible. Look for the article to be oft-quoted by Republicans.

7. Citizens United--the campaign finance case--and understanding the problems of ordinary Americans, not big companies. This is version 2.0 of �empathy.� Look for the Administration to attempt to link this theme to Kagan, but struggle. She does not have the personal back-story of Sotomayor or professional experience in, for example, anti-poverty programs. Supporters may turn to programs she fostered at Harvard. The White House cites the Citizens United ruling as the best evidence of the conservative Court�s pro-business bias. Kagan argued the case for the Administration, so there is some link there.

8. Privilege. Kagan served for four years in the Clinton Administration, some in the White House counsel�s office and some in the domestic policy shop. Opponents will naturally demand the disclosure of as many of her documents as possible. There will likely be skirmishes over attorney-client and executive privilege, and application of the Presidential Records Act.

9. Diversity. Kagan would be the fourth female Justice. The Court will have three women for the first time.

10. Who knows? Something almost always emerges. For Justice Sotomayor it was �wise Latina.� For Justice Alito it was Concerned Alumni of Princeton. It makes sense to anticipate something for Elena Kagan as well.

Note as well the five issues that will be mentioned in the nomination fight, but won�t blossom into major points of discussion.

1. Big sexy social questions. Expect to see little of the traditional hot-button social issues, other than possibly gay rights in the military context discussed above. Activists on the left and right will try to link Kagan to abortion, religion, and guns, but there appears to be no hook that will make those big points of controversy. The Administration will as a consequence be able to keep the focus on economic questions for the summer.

2. Religion. Kagan would be the third Jewish Justice on the Court, along with six Catholics and no Protestants. But religious heritage seems not to be emerging as a real issue.

3. Sexuality. The White House slapped down whispers asserting that Kagan was gay. Among the LGBT community and social conservatives, the issue won�t disappear entirely. But the Administration�s response was decisive and fully informed, so it will not emerge as a genuine question.

4. Race in Harvard�s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan�s tenure were all white. However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

5. Goldman Sachs. Kagan served on a board of advisors that had nothing to do with Goldman�s difficulties. The point will be mentioned, but it lacks substance so it will not affect the nomination.

That's one man's opinion.
Scanning stories as they bubble up it strikes me as a pretty good punch list.

I like that she has never been a judge and comes with both academic and administrative credentials. The next couple of news cycles will reveal now much dirt can be churned up.