A Progressive’s Defense of Elena Kagan


This article was originally published by Care2.

Mere moments after President Obama announced Solicitor General Elena Kagan as his choice to replace retiring Supreme Court Justice Stevens progressives denounced the nomination as an affront to Stevens’ legacy and further proof that the President had abandoned the very base that worked so hard for his election. 

The ever-vocal members of Firedoglake pitched what can only be described as a total tantrum at the nomination, proclaiming Kagan an unqualified careerist not fit for even a summer associate position at a New York law firm let alone Justice of the Supreme Court.  Over at Salon.com, Glenn Greenwald scolded the administration for a pick with an “abysmal” record on diversity, and critics everywhere wrung their hands over Kagan’s betrayal of women in crafting abortion policy while serving as part of President Clinton’s staff.  Finally, those critics on the left who actually acknowledged that Solicitor General Kagan does have some worthwhile experience dismissed her record as Solicitor General as one that did little more than rubber-stamp the Obama administration’s continuation of Bush-era detention policy.

But not so fast.

Let me first say that, as a progressive, Solicitor General Kagan was not my first choice to replace Justice Stevens.  And to be fair, she probably wasn’t my second either.  But, she is an excellent choice and the attacks thrown at her from the left are ill-informed and, well, exactly what I expect of the right.  That said, it’s worth it to take a moment and unpack both the critique and Solicitor General Kagan’s record.

1.  Kagan is Unqualified

As noted earlier, Elena Kagan is the current Solicitor General of the United States and former Dean of Harvard Law School.  She graduated from Princeton with honors, received her Masters of Philosophy from Oxford, and graduated, with honors, from Harvard Law School.  She clerked at both the U.S. Court of Appeals for the D.C. Circuit and, most notably, at the Supreme Court under Justice Thurgood Marshall.  Following her clerkships she entered private practice and then onto academics at the University of Chicago where she obtained tenure in 1995.  While teaching at the University of Chicago she focused on administrative law and First Amendment issues and was senior counsel to then-Sentaor Joe Biden who was, at that time, chair of the Senate Judiciary Committee.

Between 1995 and 2000 she served as President Clinton’s Associate White House Counsel, deputy assistant to the President for Domestic Policy, and deputy director of the Domestic Policy Council.  In 1999 she was nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit but Senator Orrin Hatch refused to schedule a hearing for her.  She then moved to Harvard Law School were she became the law school’s first female dean.

But those academic and professional qualifications have not quieted her critics on the left who charge that it is her lack of judicial experience that is the real issue.  Well, neither have 10 former Chief Justices and 30 Associate Justices including Chief Justices Earl Warren and William Rehnquist, and Associate Justices Louis Brandeis and William O. Douglas, just to name a few.

Furthermore, professional diversity in general is a good thing, but particularly in the world of the law.  In many ways the judicial chamber is as privileged a space as the ivory tower of academics, a place where the law can become over-intellectuallized and separated from its impact on citizens.  Judges develop habits that, well, can create intellectual laziness, no matter how brilliant the mind.  Solicitor General Kagan is as qualified to be on the Court as former Chief Justice Earl Warren and to suggest otherwise hints at a bias that has more to do with Kagan’s gender than it does her credentials.

2.  Kagan Has a Poor Diversity Record

Glenn Greenwald over at Salon.com has been the most visible of Solicitor General’s critics on the issue of diversity during her tenure at Harvard Law School, but others have certainly picked up the theme as well.  And at first glance, her record does look pretty bad.  But, similar to the critique of her time as Solicitor General, it ignores a lot of institutional realities and uses evidence that is not all there.

While Dean at Harvard Law School Kagan oversaw the hire of 23 white men, 5 white women and one Asian-American woman, and no black or Latino professors.  And if those numbers were the only measure of Kagan’s commitment to diversity I would certainly not be making a case for her defense.

But as her colleague Professor Charles Ogletree Jr., the Jesse Climenko Professor of Law and Harvard Law School and the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice details in a passionate letter of defense, this is just not so.  As Dean Kagan pushed the faculty to extend appointments to African American and Latina candidates, some of whom chose to remain at their respective institutions rather than accept a position at Harvard.  Furthermore, she was instrumental in creating a generation of diverse practicing lawyers who would accept clinical appointments at Harvard in addition to overseeing the increase of the number of African American students from 10% of the total population to 31%.  These accomplishments merely scratch the surface of Dean Kagan’s tenure.  For a full accounting of her dedication to issues of diversity at Harvard Law, please click here.

3.  Kagan is Weak on Abortion Rights

This is a critique that puzzles me the most.  While a domestic policy aide to President Clinton, Kagan sent the President a memo urging him to endorse a ban on late-term abortions sponsored by Senator Tom Daschle.  Daschle’s amendment was not as restrictive as other measures in the Senate, and the move was a strategic measure designed as a way to defeat the more restrictive measure and insulate President Clinton from having to exercise a Presidential veto.  Yet, this memo is being used against Kagan as proof that she would sacrifice women’s health issues or, worse yet, be the vote that could overturn Roe v. Wade.

This critique misses a few key points.  First, there is an enormous difference between crafting positions of policy and strategy and judging the law.  Kagan has already come out and stated, unequivocally, her support for stare decisis, which in the world of judicial confirmations means an unwillingness to overturn precedent like Roe.  Second, the advice given to President Clinton was designed to try and prevent an even more restrictive abortion measure from passing and insulate her boss, which suggests a woman trying to strike a difficult balance between remaining true to her values and doing her job effectively. Ultimately the more restrictive measure was passed by the Republican Congress, but did not become law because of a Presidential veto.  So, while she couldn’t protect President Clinton from having to use what some saw as a controversial veto, the abortion measure did not become law.  In fact, it wasn’t until the Bush administration, with the help of the Roberts Court that the Partial-Birth Abortion Ban became law.  To suggest that Kagan was anything other than trying to protect a woman’s right to chose is quite simply, absurd.

4.  Kagan as Solicitor General has Argued Bad Law

Finally, those on the left have looked at the cases involving Solicitor General and have criticized her for the continuation by the Obama administration of Bush era detention policy.  This critique misunderstands the role of the Solicitor General and shows, much like the arguments against her time at Harvard, a misunderstanding of the nature of institutional leadership.

The Solicitor General’s job is to advance the position of the administration before the Court.  In the case of many detention decisions, these cases originated in the Bush White House.  Some were abandoned by the Obama administration, while others were not.  Those that were pressed contained reasonable arguments in support of continued detention of specific individuals or of already-etablished FISA powers.  To maintain these positions before the Court is exactly what Solicitor Kagan is supposed to do.

As a vocal critic of many of these policies I am among the left that has felt left behind by the Obama administration’s persistence that executive authority has a broad reach.  But that is an issue to take up with the President, not his lawyer.

As we get closer to possible confirmation of Kagan I assume the critiques will get sharper and the need for explanation more pressing.  Demanding Elena Kagan clearly articulate her positions on executive authority, privacy, and the rule of law is an exercise I look forward to, from both the right and the left.  But what has been charged at her so far has been far from that–rather, it’s been nothing more than politics as usual and, like politics as usual, has yielded little more than sound bites and spin.

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