Elana Kagan as Supreme Court Nominee

Elana Kagan has been off my radar to a large extent until she was picked as the nominee to replace Stevens. I have heard both good and bad about her. Keep in mind, that legal decisions aren't always what you want them to be. Remember that the ACLU, an organization I certainly respect, was behind the free-speech covering corporate donations case. The law is the law and it is not always possible for a judge to decide the way we would want them to.

In this context I want to pass along a very positive take on Kagan from a fellow Daily Gotham blogger:

The wires are glowing with reports that President Obama is set to nominate the Solicitor General of the United States, Elana Kagan, to replace retiring Justice John Paul Stevens. In her current role, Kagan acts as the United States government's appellate attorney to the Supreme Court, experience that should serve her well if the Senate approves her nomination under Advise and Consent. Ms. Kagan was confirmed by the Senate for her current role by a comfortable 61-31 margin, and is the first female Solicitor General.

The process of determining what kind of a Justice a given nominee will make is roughly comparable to reading the future from a set of poultry entrails, and sometimes just as messy. In Ms. Kagan's case, that process is further complicated by her lack of a paper trail from the bench.

There are some clues, though. During her time as dean of Harvard Law, Kagan briefly barred military recruiters from campus in protest of the Don't Ask Don't Tell policy, arguing that the policy violated Harvard's own non-discrimination guidelines. There's also this tantalizing sketch in the Times:

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

The Supreme Court has been at the heart of American governance since Marbury v. Madison established the doctrine of judicial supremacy, the Court's right to constitutional review of the other branches of government.

Overall, this is a safe pick for the President. The critical goal of this nomination is this: to establish a counter-weight to the rightist ascendancy centered on Chief Justice John Roberts. But what should really make New Yorkers happy is that a Justice Kagan would make four out of nine Justices New Yorkers. Eat that, Jersey.

Update: Two NY-AG candidates weigh in via Facebook:

Senator Eric T. Schneiderman By choosing Elena Kagan, President Obama is 2 for 2 in naming outstanding New Yorkers to the Supreme Court.
40 minutes ago · Comment · Like

Friends of Kathleen Rice It's a great day for NY women in government--congratulations Elena Kagan!

I would also like to note that she has shown some strong support of free speech. From PBS:

During Kagan’s brief tenure in litigation, she served as part of the counsel that represented the recording industry and several records labels in their challenge to a music obscenity ruling that stemmed from the release of rap group 2 Live Crew’s “As Nasty As They Wanna Be” album.

I find this encouraging. I accept that Obama is more conservative than I am and so I know his picks won't be my ideal picks (hey...how about Norman Siegel for Supreme Court justice? Well, just a thought...). But I do feel confident that his picks will be intelligent and capable and not ideologues of any sort. The analysis I quote gives me some confidence that Obama made a good, though perhaps not ideal, choice.

For more information, I refer you to Media Matter's "Myths and falsehoods about Elena Kagan's Supreme Court nomination" where they give a good analysis of her as a nominee.

Here is the view from Open Secrets.

Here is an alternate viewpoint from Salon.com

And here is the analysis from Think Progress which is in response to the Salon.com piece.