Preliminary Reflections on the Kagan Nomination

I don’t have a lot to say about Obama’s nomination of Elena Kagan that can’t be said better by others. Unlike now-Justice Sotomayor, she does not have an extensive record on issues that are within my core areas of expertise. I do, however, want to highlight one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas.

I. Kagan’s Relative Openness to Non-Liberal Views of the Law.

My general view of Kagan is that she is quite liberal and likely to vote with the liberal bloc on the Court on most important issues. At the same time, however, her record at Harvard shows that she has respect for alternative perspectives and takes them seriously. In this respect, , she seems different from Sotomayor, who wrote several opinions that disposed of major controversial legal issues in a cursory fashion that made it clear that she did not believe that the other side had a serious case that deserved serious consideration (see, e.g., here, here, and here).

Given the nature of the Obama Administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee and that she would probably be confirmed. In such a situation, I would rather have a liberal justice who takes alternative perspectives seriously and might occasionally be persuaded by them than one who is generally dismissive.

It is also worth mentioning that Kagan has critics on the left who believe that she is almost a closet conservative. I highly doubt that is in fact the case. Kagan has a long record of liberal views and involvement with liberal causes. It is significant that there aren’t any noteworthy conservative or libertarian legal scholars or activists who believe that Kagan is somehow one of them or even believe that she is a centrist. Ed Whelan’s recent “baffle[ment]” at claims that Kagan “might secretly harbor some conservative legal views” is representative of the dominant view of her on the right, including among right of center legal scholars who know her well, such as Harvard’s Charles Fried. Still, there is at least a small chance that Kagan’s left-wing critics have divined her true views correctly. Even if she isn’t any kind of conservative or libertarian, she might be less liberal than administration supporters hope. With Kagan, that possibility at least exists. Not so with most of the other plausible nominees. The small but not infinitesmal chance that Kagan might actually turn out to less liberal than I expect is another strike in her favor.

II. Other Relevant Considerations.

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

In my view, it is perfectly legitimate for senators and others to oppose a professionally qualified judicial nominee because of flaws in her judicial philosophy. On this, I agree with Barack Obama. At the same time, any nominee must be weighed against the likely alternatives, not just against some ideal pick. Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to pick. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage all-out war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.

Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration’s judicial philosophy. Kagan herself defended the legitimacy of inquiries into a nominee’s judicial philosophy in a 1995 article. Despite some excesses, I think we were fairly successful at doing that during the debate over Sotomayor, which gave new prominence to property rights issues, and forced Sotomayor to publicly repudiate liberal views on the importance of “empathy” and international law. Hopefully, the Kagan hearings will be another opportunity to advance public debate over important legal questions.