President Obama is still an hour and a half away from formally announcing his choice of Solicitor General Elena Kagan for the Supreme Court vacancy left by Justice John Paul Stevens’ retirement, but red flags are already being raised by some on the right.
Expect Republicans to attack Kagan for attempting to bar military recruiters from the Harvard Law campus a few years ago when Kagan was dean. This issue was front-and-center during Kagan’s confirmation hearing last year for her current post. Then, 31 senators voted against her — even though the solicitor general enjoys a far shorter term than a Supreme Court justice. The few Republicans who gave her the thumbs up for the executive post — including the Senate Judiciary Committee’s Orrin Hatch (Utah) and John Cornyn (Texas) — may not be sure votes this time around.
Because Kagan has not served as a judge on the lower courts — she was nominated by President Clinton but never received a floor vote for a seat on the U.S. Court of Appeals for the D.C. Circuit — she has little in the way of a paper trail. While this may be helpful in one respect, some conservatives will use it to argue that she lacks the necessary experience to fill a high court slot. Contrast this with Justice Sonia Sotomayor’s nearly two decades’ worth of decisions from trial and appellate courts. Ed Whelan, a conservative commentator and former Scalia clerk, has asserted that Kagan’s lack of “real world experience,” due to her long tenure in academia and in high government posts, perhaps makes her even more insulated from the experiences of most Americans than those who spend years cloistered in the judicial monastery.
My objection comes from her acceptance speech in which she referred to the United States as a “Constitutional Democracy.” Perhaps she should look into a better law school.