Before the much anticipated confirmation hearings take place, it is useful to consider the pros and cons of President Obama’s second appointment to the Supreme Court, current Solicitor General, and former Dean of Harvard Law School. Elena Kagan. In replacing the iconic Justice Stevens, the appointment of Kagan would set the balance of the court at six men and three women, along with a religious distribution of three Jewish and six Catholic justices. There would no longer be a protestant on the Supreme Court, and the court would arguably no longer have a justice who is firmly liberal in ideology. Given these conditions, here are some of the main arguments that are sure to arise in Elena Kagan’s upcoming questioning.
The Pros…
1.) Solicitor General of the United States
As the “tenth justice,” as the position is often referred to, and the first female Solicitor General in United States history, Kagan’s main office is located in the Supreme Court building, and she has the immense responsibility of arguing the Government’s position on constitutional matters and her office oversees the governments appeals process. This key position assures her vivid understanding of the inner workings of the High Court, and should make one of the primary opposition arguments, that she has never been a judge at any level, weaker in light of her firsthand experience within the institution.
2.) Dean of Harvard Law School/Work as Professor/Education
While at Harvard as a visiting professor, Kagan was an award winning contributor to the Harvard Law Review, writing extensively on the President’s role in administrative and regulatory matters, and in 2003 was selected as the first female Dean of the Harvard Law School. She has served as a clerk for Justice Thurgood Marshall, and she also worked alongside Barack Obama at University of Chicago Law School, where she became a tenured professor in 1995. She attained her J.D. from Harvard in 1986, and holds an undergraduate degree in History from Princeton and Masters in Philosophy from Oxford University. Nonetheless, her record as a student and an educator is widely viewed as exceptional.
3.) Nomination to the Court of Appeals
In 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. However, the Senate Judiciary Committee under Republican Orrin Hatch failed to schedule her hearing, and her nomination was withdrawn. Then, President Bush appointed soon to be Justice Roberts to the seat. To her supporters, this fact should serve as evidence that she had the confidence by the President to become a judge nearly a decade ago, and the subsequent years and her experience should make her an even better candidate at this point.
4.) White House Counsel
As the Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council, Kagan was directly involved in the day to day legal activities of the Clinton White House. She served from 1995 to 1999, and her tenure ended gracefully with the previously mentioned nomination to the US Court of Appeals.
The toss up…
5.) Independent Thinker
In his announcement this morning, President Obama referred to Kagan as “one of our nation’s foremost legal minds, an acclaimed legal scholar with a rich understanding of constitutional law.” She is known to be an independent thinker and a consensus builder (code word for centrist). For this reason, many in the center and the Right feel she will be strong intellectual addition to the High Court. This, however, marks the point where we begin to look at potential cons that could hinder her nomination. Some, especially to the left of center, believe that her independence makes her undependable as a liberal vote on the court; therefore, it is likely that her opposition will highlight her unclear record (she supported the Bush Administration’s policy on interrogating terrorists on foreign soil) on matters of executive power and the trial of foreign born terror suspects. She also tried to ban the attendance of military recruiters at the Harvard Law School in a protest of the military’s “Don’t ask, Don’t Tell” policy.
The Cons…
1.) Never a Judge
The first glaring weakness in the minds of some is Kagan’s lack of judicial experience. Though she has worked in the courts, she lacks the paper trail that judges accumulate during their tenures. Therefore, her opponents point to the lack of clarity in her stances on critical positions that most judges would have written on at this point. This point of contention will clearly be raised during her confirmation hearing.
2.) Application of Battlefield Law
As mentioned earlier, Kagan’s opposition from the left is likely to highlight her support of President Bush’ s policy for indefinite detention without a trial for terror suspects caught on foreign soil. This position is viewed as a Right leaning ideology on matters of battlefield law. Those who are weary of Kagan’s reliability as a liberal vote will point to her statements on this matter as proof that she will not replace Justice Steven’s as a voice for the left.
3.) Lack of a Protestant on the Court
Some will argue that the court needs more religious balance, and that the addition of a third Jewish judge skews the court in this department by marking the end of a protestant prescence on the bench. This argument, while factual, is weak in relation to the reasoning behind picking a judge in a country where church and state are separated. Kagan can point to her record as an independent thinker to counter arguments that her religion will seriously impact her decision making.
4.) The Unknown Factor
Because Kagan was not previously a judge, and because her current job calls for her to act in accordance to the requests of the Obama Administration, it is largely unknown exactly where she stands on the political spectrum. If previous nominees are used as a model of comparison, the issue becomes even more complicated due to the fact that many Justices, such as John Roberts, appeared to be centrists but changed their tones once they reached the bench. Will a Justice Kagan stick to the centrist Democratic ideology which she has represented under President Obama, or will she make a move to the left or the right upon reaching the Supreme Court?
Conclusion…
In the end, the unknown factor could make for the most fireworks at Kagan’s confirmation hearing. The fact that she has no paper trail other than cases she has argued on behalf of the government makes it difficult to put a finger on a exactly what kind of Justice she would ultimately become. In my opinion she will most likely become a center left Justice, much in the mold of her predecessor Justice Stevens and the Democratic President she works for. Her calls for more transparency in the Supreme Court confirmation process should place her in a position where she will have to answer the most pressing questions on her ideology in adherence to her own stated standards. Based on the nature of the process, initial reaction, and the large Democratic majority, it is KTT’s feeling that Elena Kagan will become the 112th Supreme Court Justice of the United States.
No comments:
Post a Comment