One of the most lasting legacies a President can leave this country is in who
he nominates to the Supreme Court. Some who hold the office never get the chance to do so and it has been 15 years since a Democratic President nominated someone to the high court. Now, in the span of little more than a year, President Barack Obama is set to make his second nominee to a position of great importance in America. He will announce today his choice to replace retiring Justice John Paul Stevens will be Elena Kagan, the current Solicitor General of the United States. Let’s look a bit closer at the woman who will almost assuredly be the next woman to sit on the Supreme Court, making it the first time three woman have sat on the high court at the same time. From NPR:
At age 50, Kagan would be the youngest member of the current court if confirmed and the only justice who has not served previously as a judge. In 1999 at age 39, President Clinton nominated her to the federal appeals court in Washington, but the Republican-controlled Senate never even held a hearing on her nomination.
Kagan had served in a number of top positions in the Clinton White House prior to that time, and while her nomination was pending, she returned to teaching, this time at Harvard Law School. In 2003, she was named the first female dean of the law school, where she subsequently won widespread praise for ending the long-standing faculty wars.
Before I go any further, let me say that I believe Kagan’s age of 50, which makes her the youngest member of the court, will have the most far-reaching consequences of any of her qualifications. Barring an early and untimely death or retirement, she will be serving for many, many years and will help shape the Court greatly over a period of decades. Her influence will certainly be felt on the Supreme Court for a long time.
I think it is safe to say where Elena Kagan will face the most opposition to her nomination, ie. her support and advocacy for the ban on military recruiters on the campus of Harvard. This ban was instituted because of the military’s “Don’t ask, Don’t tell” policy on openly homosexual men and women serving in the military. Although the ban had already been in force for nearly 25 years when Kagan took the job as dean of Harvard’s law school in 2003, she actively supported the ban and worked to reinstate it. The ban had been lifted in 2002, under the pressure of the Bush administration. From FOX News, here is how she stated her own reasons for the supporting the ban.
”The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,” she said shortly after becoming dean at the law school’s first reunion for its gay, lesbian and bisexual alumni. Later, as the issue intensified with protests on campus, she wrote in an e-mail message to students and faculty, ”I abhor the military’s discriminatory recruitment policy.”
I am sure there will be opposition to Kagan’s nomination and some of it is bound to arise from the ashes of her support of the Harvard ban. Personally, I have always questioned the “Don’t ask, Don’t tell” policy and it’s usefulness. I have no interest in hashing out that argument here, so suffice it to say that even though I disagree with the lifestyle choice homosexuals make, I see no bearing it has on their service in the military. As long as their choice does not interfere with the effectiveness of their unit, then their choices are their own. That also goes for heterosexuals as well, as it could be said that some of their behavior would be disruptive to the cohesion of a military unit.
The one thing that I have a question about is her lack of judicial experience. I mentioned this in an earlier article on those who were on the short list to be nominated. In that article, I mentioned the fact that only five out of the twelve who were on the list had any judicial experience. Concerning Elena Kagan, she had no courtroom experience at all, before she was appointed to the office of Solicitor General and since that appointment, she has argued six cases before the Supreme Court. I am not saying that is a bad thing or that it will make her a bad Justice, but I do think it is telling on how the President examined his choices and came to a decision. It seems pretty clear that from the very beginning, he was looking outside the box to fill the seat and I find that interesting, to say the least.
After today’s announcement in the East Room of the White House, Kagan’s nomination will be taken up by the United States Senate in about six weeks. With Stevens’ retirement, I am sure the President, the Senate, and the Justices themselves will want a fully-staffed Supreme Court for the upcoming session. That is as it should be and I hope the process goes smoothly. Barring any hidden red flags, I see no reason it should not.
Larry,
I, too, think Kagan will get grilled a bit for her stance on banning military recruitment at Harvard. From what I have read and heard though, Conservatives could do a lot worse than her.
Much will be made of her age, of course, and that (if confirmed) she will be the youngest on the court. That is, however, in keeping with the trend of SCOTUS nominations. Chief Justice Roberts was just 50 when his nomination was confirmed, and he took over the top leadership spot of the Court with two years of District Court judicial experience. It reminds me of a post on Political Realities months back, questioning the wisdom of lifetime appointments. In light of the fact that SC Justices are hitting the bench younger these days, it might be a good link for us to revisit.
I agree with the concerns about her lack of actual judicial experience, as well as the lifetime appointment. The entire point of our system of government is to allow the power to rest with the people! So, when the power to appoint a justice lies only with the president (although congress does have to approve), and that justice stays for life… Does anyone else see a problem here? Logically, Justices should be elected just like every other branch of the Government, and they should have a term. If we, as citizens, are supposed to abide by their decisions, we should also have a say in who is judging us. I’ll probably talk more about this in my article on the Judicial Branch.
Isaiah
.-= Isaiah Roberts´s last blog ..David’s Charge To Solomon… =-.
As I’m sure you know, Isaiah, Article 2, Section 2 of the Contstitution provides specifically for Presidential appointment of Supreme Court justices with congressional appproval-The Senate, specifically? I forget. But I don’t think “lifetime appointment” is a Constitutional provision, and that’s still an interesting discussion point.
The constitution states that justices will serve “during good behavior” by which the founder did mean for life.
This was an issue of much contention in the constitutional congress, but in the end I believe they agreed that justices should serve for life so that they woiuld be less likely to be able to be bribed because they would have a secure job and would not succumb to the notion of making a quick buck while they could.
Good post Larry. I think Kagan is an excellent choice and I have no problem with her lack of judicial experience. By most accounts she has a brilliant legal mind and vast background in constitutional law. The “courtroom” thing is sort of irrelevant since there is very little courtroom time experienced by the Supreme Court. Even the big cases go before the Justices for no more than an hour…amazing but true. Clarence Thomas never, ever says a word in Court…also amazing but true. The work goes on in meetings of the Justices and their clerks do a huge amount of the background work. As I said in an earlier comment, if Sandra Day O’Connor and John Paul Stevens are strongly interested in seeing a non-judge on the court, knowing full well what is required, then I don’t see how any of us or any Senator can express deep concern.
Laurie, the post you refer to is one I wrote last fall — thanks for remembering. Here’s the link:
http://www.ldjackson.net/news-politics/the-supreme-court-term-limits-and-judicial-review/
In the post I supported a proposed means of overcoming the Constitutions effective lifetime appointment of SC justices. But Isaiah, the idea of electing Justices is truly frightening and fraught with risk of conflicts of interest from huge contributors with cases before the Court.
Thanks for the comments, everyone. I really don’t know a lot about Elena Kagan, other than what I have read on the Internet. I do know there are a lot of rumors floating around, which I find despicable. I hope we can all stick to her qualifications.
Isaiah, I was thinking about your series of posts while I was writing this article and wondered which part would be next. I will be looking forward to reading your thoughts about it and the discussion following. I will say this, I have to agree with Mike about the possibility of electing our Justices. I think that would be a disaster waiting to happen. They are supposed to be impartial and putting them into an election cycle would be a sure way of destroying that. I do think a term other than a life term would be worth looking at, but not if we bring elections to the selection of our Justices.
Larry,
One more observation: Judicial experience isn’t a prerequisite for SC judges, and we have had some Justices in the recent past who have come to the job without any bench time at all. Chief Justice William Rehnquist was one of them.
Great post Larry! First I want to second your position on “don’t ask, don’t tell,” I do not have a problem with anybody who wants to serve our country in the military even if they are gay. If they choose to join the service and put their life on the line for me and my family I will support them all the way. Being gay will not prevent them from doing the job that they are willing to do. What they do behind closed doors is up to them, in my opinion.
I do not have a problem with Kagan’s lack of judicial experience, she seems to be well qualified for the position and well verced in the law,and judicial experience is not neccessary for the position.
I may have a problem with her positions and her philosophy but I can’t say for sure yet because not much is known about her, although I would say that we know Obama’s philosophy and I don’t agree with it, I would guess that she falls in line with him. The fact that this nomination nas sparked some backlash from liberals tells me that we could have gotten a much worse pick than this, time will tell but it is going to be interesting.
Thanks, Steve. I find it strange to see how the liberals are going after Elena Kagan. A lot of them really do not want her confirmed, as they were hoping for a much more liberal nominee.
To be honest, I think Kagan is a bit of an unknown. Yes, everyone knows who she is and what her qualifications are, but no one seems to be able to get a feel for what kind of justice she will be. That gives both sides great pause, as they do not know how to respond to her nomination. I think it will be very interesting to see how this plays out.
This is going to be very interesting indeed. I find this to be comparable to President Bush’s nomination of Harriet Miers. The right was inflamed by the choice because they didn’t know who she was, now the same is true in this case by the left. In their opinion it isn’t the fact that she is not liberal enough, it is the fact that they don’t know for sure if she is liberal enough. Did that make sense? She is unknown and that is what is the scariest prospect to people on both sides of the aisle.
Larry,
I think the hard left is never going to love anything that President Obama does. Like Clinton, Obama seems to run a bit to the center on some of the things the left would prefer he be more liberal on. In the case of Kagan, we really don’t know much about her except that she has what people from all points on the political spectrum have said is a superior legal mind.
I actually like that she challenged the government’s Don’t Ask, Don’t Tell policy. I have no problem with military recruiting at public universities, but the policy is abhorrent: What other branch of government or government agency is allowed this sort of open discriminatory policy? In theory, that should make the left happy, but…Just today, I learned that she supported the ban on late-term abortions. Ah ha- now we’re getting somewhere.
I had read about her opposition to late-term abortions, but it was after I wrote this article. I think that should be promising to those who care deeply about that issue.
I honestly think Elena Kagan is in for a major nomination fight. I have been seeing some things online, that if they come up during the nomination hearings, it will be tough for her. I have not mentioned them before, simply because they are only rumors and I do not wish to get involved in spreading something like that around. Others have not be so hesitant in doing so.
Kagan sounds like a decent candidate, but it is going to depend on how it all goes down.