Supreme Court Nominee Kagan Is a “Moderate”

President Obama nominated US Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court. If confirmed, she would be the youngest member on the court, at age 50, and would be one of three sitting women on the Supreme Court, an historical first. President Obama called her a “trailblazing leader.” But members of the progressive legal community are disappointed in the President’s decision.

President Obama’s relationship with Kagan dates back to the University of Chicago Law School where they both taught.  She has never been a judge; she taught and eventually became Dean of the Harvard Law School and Solicitor General under the Obama administration.

At a Monday morning news conference, Obama praised her “openness to a broad array of view points” and her “skill as a consensus builder.” Obama highlighted her ability to diffuse political and ideological tension among the law faculty at Harvard. She hired 32 new tenure or tenured-track professors, some conservative, to diversify the overwhelmingly liberal slant.

Kagan also worked as Associate White House Counsel under President Clinton. There she was instrumental in greater regulation of the tobacco industry.  Her colleague at the Clinton White House, Elaine Kamarck, who now is a Professor at The Kennedy School of Government at Harvard, said Kagan is a “moderate” and a “centrist.”

“She’s a Democrat. Is she a far-left ultra liberal? No. Not by any stretch of the imagination,” Kamarck said.

That centrist label is concerning to some on the left and some on the right are not buying it.

Marjorie Cohn is a professor at Thomas Jefferson School of Law. She said Kagan is a “cautious pick.”  She would have preferred a known liberal legal mind like contender Judge Diane Wood. Cohn cites Kagan’s lack of scholarly writings, especially during the Bush administration’s so-called “War on Terror.”  “Many, many law professors across the country wrote and spoke out against those policies. We didn’t hear a word from Elena Kagan,” Cohn said.

Cohn also points to statements she made during her confirmation hearing in 2009 to be Solicitor General. Kagan said she agreed with Senator Lindsay Graham (R – SC) and his support of indefinite detention during wartime and the boundary-less battlefield.

Republican Senator Lindsay Graham of South Carolina wrote a noncritical statement of Kagan for Supreme Court.  He said he has been “generally pleased” wither her term as Solicitor General, especially on legal issues of terrorism.

Guy-Uriel Charles, Professor of Law at Duke University said her ideological diversity efforts at Harvard lacked color and gender. Of the 32 new professors, Charles said only 7 were women and only 1 was a Asian. No blacks or Latinos were hired.

“She pulled out all the stops and made sure that the institution hired conservatives and made sure the institution become much more ideological diverse. We would have liked to have seen similar actions with respect to racial inclusion,” Charles said.

Meanwhile, Republicans are pointing to her high profile stand when she banned military recruiters from Harvard’s campus because of the “Don’t Ask, Don’t Tell” policy.   She called it a “moral injustice.”

Heather Heidelbaughu, Vice President of the Republican National Lawyers Association, says Kagan “took her own personal views about the situation – contrary to the law – and that’s a bad precedent for a Supreme Court judge.”

Kagan clerked for Supreme Court Justice Thurgood Marshall, whom she called her hero. Republicans are criticizing that as well because Marshall called the Constitution as it was originally written “defective.” Marshall, was referring to slavery, which was written into the Constitution by counting slaves as three-fifths of people, and also because slavery was unable to be amended for twenty years, until 1808.

Democrats hope to confirm Kagan before the summer break in August.

Here are some more statements on Elena Kagan’s nomination:

Michael Steele, Chairman of the Republican National Committee:
“Over the past year, the American people have been witness to President Obama’s massive expansion of the federal government into our daily lives. To assure the American people, President Obama’s Supreme Court nominee, Elena Kagan, will need to demonstrate that she is committed to upholding the vision of our Founding Fathers, who wrote a Constitution meant to limit the power of government, not expand it. The President has stated repeatedly that he wants a justice who will understand the effects of decisions on the lives of everyday Americans. But what Americans want is a justice who will stay true to the Constitution and defend the rights of all Americans, adhering to the rule of law instead of legislating from the bench. Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective,’” you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.”

Senator Patrick Leahy, Chair, Judiciary Committee:
“Among the most serious constitutional duties entrusted to the Senate is the confirmation of Supreme Court Justices.  Americans are looking to Washington to cast aside the political rancor and partisanship that has fueled so many recent debates.  The decisions made at the nation’s highest court affect the daily lives of all Americans.  Our constituents deserve a civil and thoughtful debate on this nomination, followed by an up-or-down vote.”

Senator Jeff Sessions, Ranking Republican, Judiciary Committee:
“Although the Committee is familiar with Ms. Kagan from her previous nomination as Solicitor General, a lifetime appointment to the Supreme Court is a far more significant position. Accordingly, her nomination merits a fresh review based on different criteria. It is unwise to make a judgment on her nomination until that evaluation is conducted.

“We know that several areas warrant close scrutiny. Ms. Kagan’s lack of judicial experience and short time as Solicitor General, arguing just six cases before the Court, is troubling. The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to the impartial application of the law and the Constitution. With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics.

“Also deserving review is her decision as dean of Harvard Law School to personally and aggressively restrict the U.S. military’s ability to recruit some of the brightest law students in the country because Dean Kagan opposed President Clinton’s ‘Don’t Ask, Don’t Tell’ policy. Her challenge to the unambiguous federal law requiring equal access for military recruiters was unanimously rejected by the Supreme Court. This is a significant issue for me since I worked hard for the passage of the Solomon Amendment. Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.

SEIU: “The people deserve justices like Kagan – justices whose allegiance to equal justice and the rule of law trumps politics and corporate influence. And, nothing could be more important than restoring the Court’s commitment to these principles.”

Americans for Limited Government:
“Elena Kagan is an unknown quantity with nothing in her record to recommend her to the highest court in the land.  She’s never been a judge, and devoid of any examples, Senators will be hard-pressed to determine exactly what her judicial philosophy is”

President Bush’s nomination of Harriet Miers’ was withdrawn for the same exact reason, and rightly so.”

Follow Leigh Ann Caldwell on Twitter.

Here an audio version of this story on FSRN.


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