Paper trail or not, with Elena Kagan what you see is what you get

Ed Whelan takes down E.J. Dionne’s claim that Elena Kagan’s decision, as dean of Harvard law school in 2004, to bar military recruiters from access to the law school’s jobs office was “simultaneously careful and principled” — just “what makes for thoughtful judging.” Among other points, Ed notes that the kind of “careful and principled” approach Kagan took in this matter was deemed by a unanimous Supreme Court (in Rumsfeld v. FAIR) to violate federal law (the Solomon Amendment).
Dionne also claims that “the surface similarities between [John] Roberts and Kagan are breathtaking.” Well, let’s see. Roberts had experience as a federal appeals court judge; Kagan has none. Roberts had been arguing cases (39 of them) before the Supreme Court for years. Kagan started arguing cases before the Supreme Court less than a year ago, and now has argued six. Kagan spent years in academia. Roberts was never an academic.
There is this similarity, though — as nominees, both aroused suspicion on the part of the nominating president’s base that they are not ideologically reliable. Readers may recall that Ann Coulter, among others, expressed serious concern about a perceived lack of evidence that Roberts was sufficiently conservative. These doubts, never well-founded, were dispelled when memos he had written as a Special Assistant in the Justice Department came to light. Nothing in Roberts’ work as Chief Justice has caused them to reappear.
There is also no good reason to doubt that Kagan is a hard-core liberal (whether she’s radical enough for some on the far left is another matter — she may not be out there with Goodwin Liu). Kagan was raised in a left-wing household. At Princeton, she wrote her thesis about the American Socialist movement during the first third of the 20th century, lamenting (if I understand correctly) its failure to make major inroads.
Kagan clerked for a knee-jerk liberal Justice — Thurgood Marshall — whom she appears to have idolized. Previously, she clerked for the deeply liberal appeals court judge Abner Mikva. A memo has already come to light from Kagan’s days as a Supreme Court clerk that showed her to be a dedicated liberal on the issue of Second Amendment rights. There almost certainly are more where that came from.
In the past two decades, Kagan has served in two Democratic administrations (similarly, Roberts had served in two Republican ones). She is a reliable contributor to Democratic campaigns and was a heavy contributor to Obama’s.
Is it possible that, in the confines of Cambridge, Massachusetts, Kagan secretly has been reinventing herself as a moderate or conservative during the past decade? Theoretically, yes; as a practical matter, not really. It’s certainly not what she told the Federalist Society when she said, in a friendly way, “you are not my people.”
Fears about Kagan stem from the view that she’s a “stealth” nominee (which is true in the sense that she hasn’t produced many public writings) and that such nominees cannot be counted on. The latter proposition owes its currency almost entirely to Justice Souter. In reality, Republican presidents don’t get the kind of judges they think they’ve nominated less because the nominees are stealthy and more because the nominees change (they “grow in office”). This was the case, in my view, with Justices Stevens, Blackmun, O’Connor, and Kennedy (note that all but O’Connor were veteran federal appeals court judges and thus were not stealth nominees at all).
Souter also grew in office, but very rapidly. For a short time, he was a centrist; then he became a liberal.
To be sure, Souter wasn’t even supposed to be a centrist. But keep in mind that he was far more mysterious than Roberts and Kagan. The latter two have long been connected to the upper echelon of the legal establishment and, as noted, both served in two different presidential administrations. Souter was a local prosecutor in New Hampshire, a state court judge, and (briefly) a federal appeals court judge. Unlike Roberts and Kagan, hardly anyone knew who Souter was when President George H.W. Bush nominated him to the Supreme Court.
It is easy to see how the Bush I administration could have gotten Souter wrong. We know that Bush II didn’t get Roberts wrong, and it’s difficult to believe that Obama has Kagan wrong either.


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