Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the nomination of Elena Kagan to the Supreme Court. See Lim’s previous OUPblogs here.
When the Senate confirmed Kagan’s appointment as Solicitor General in March 2009 by a vote of 61 to 31, it was widely rumored that her name would come up again when a vacancy emerged in the Supreme Court. And so it did when the Obama administration was looking to replace Justice David Souter in June 2009 and so it has now when the administration appears to have settled on nominating Elena Kagan to replace Justice John Paul Stevens.
At her confirmation hearing for Solicitor General, Kagan drew criticism from the Left because of her view that battlefield law could apply to non-traditional battlefields, and therefore her support of unilateral executive authority. Kagan had argued that “‘war’ is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that ‘battlefield’ (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an ‘enemy combatant.’” Neo-conservatives, understandably, will be on board with this nomination. (Kagan’s views on the unilateral executive are elaborated in “Presidential Administration”, 114 Harv. L. Rev. 2245, 2001.)
The push-back in the weeks to come will likely be as vociferous on the Left as on the Right. Kagan, after all, is being nominated to occupy the most liberal seat on the bench. This is the seat once occupied by Justice Brandeis and Douglas and now being occupied by Justice Stevens. The Left will be more intent on putting Kagan through a Progressive litmus test than Justice Sonia Sotormayor was especially because Kagan is a “stealth candidate.” Before becoming Solicitor General, Kagan had never argued a case at trial, much less before the Supreme Court. She has no previous appellate experience so there is no documentary record and predictor of what her jurisprudential philosophy would be. Some Democrats are also queasy about the fact that Kagan, if confirmed, would have to recuse herself from all cases in which she had participated as Solicitor General, which means there would be one less liberal justice in an already conservative-dominated court in such scenarios.
But here is what Kagan has going for her. If confirmed, she would only be the fourth woman to take a seat on the nation’s highest bench. At only 50, she would be around a long time. And while she is closer to the conservatives on the bench in her views on presidential war power, she is certainly not socially conservative, as exemplified by her strong stance against the Solomon Amendment, which required a university that received federal funding to coo