Published June 7, 2010
In announcing his decision to nominate Elena Kagan to the Supreme Court, President Obama hailed Kagan's supposed choice of the Citizens United campaign-finance case as “her very first case to argue before the Court” as solicitor general: “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Like his State of the Union demagoguery about the Citizens United ruling, Obama's spin suffers from a few flaws that render it, as Justice Alito might say, “not true.” First, Citizens United only happened to be Kagan's first oral argument, because she chose not to argue any cases last spring and because the Supreme Court teed up the big case for a special session last September. Second, Kagan's job as SG calls for her to defend the constitutionality of federal laws, irrespective of her legal assessment of or “commitment” to them. Third, Kagan, in arguing the case, abandoned precedent holding that corporate speech could be restricted because of its distorting — or drowning-out — effects, and she thus paved the way for the Court to overrule that precedent. Indeed, Kagan had criticized that very precedent in a 1996 law-review article.
Obama's broader populist makeover of Kagan is equally implausible. Dean of Harvard Law School before she became SG, Kagan was educated at Princeton, Oxford, and Harvard and combined a career in legal academia with stints as a Democratic insider in D.C. That's just the mix of access and influence that would explain why Goldman Sachs would pay her a $10,000 annual stipend to lend her name to one of its advisory committees. But it's hardly the ideal background for appreciating how the law affects (as Obama put it) the “lives of ordinary people.”
My point is not to object to Kagan's elite credentials, much less to endorse Obama's populist rhetoric about the Supreme Court, but rather to highlight the curious chasm between that rhetoric and the reality of the Kagan pick. One explanation for that chasm might be that Obama's outlook is so shaped by the progressive academic milieu that he sees “ordinary people” — the sort of folks who “cling to guns or religion” — as a species whose real interests are best understood by experts. Or Obama may just be eager to seize any appealing rhetoric that can substitute for his lawless — and politically unpopular — “empathy” standard for Supreme Court justices.
It's important to recall that Obama's empathy standard was not some casual aside. Obama — who, as we are so often reminded, taught constitutional law for years at the University of Chicago Law School — elaborated that standard in the carefully prepared Senate floor statement that he delivered in 2005 to explain why he was voting against the confirmation of John Roberts to be chief justice. As Obama put it, the “truly difficult” cases — which would appear to be the cases in which traditional interpretation doesn't yield the results that Obama wants — “can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.” In those cases, “the critical ingredient is supplied by what is in the judge's heart.” Therefore, the empathy standard provides Obama his essential measure of a Supreme Court nominee.
Obama repeated his empathy standard as he campaigned for president. He stopped voicing it after many of his judicial nominees, including his first Supreme Court nominee, Sonia Sotomayor, saw no sensible political choice other than to repudiate it emphatically. But as he pursues such projects as his sweeping transmogrification of the American health-care system, it's clear that he wants justices who will ignore constitutional limits that stand in his way and who will, at the same time, invent new constitutional rights, on matters such as same-sex marriage, that permanently impose the agenda of the Left.
What most distinguishes Kagan from the other candidates Obama reportedly interviewed — Diane Wood, Merrick Garland, and Sidney Thomas, all three of whom have been federal appellate judges for more than a decade — is her utter lack of judicial experience. Indeed, Kagan may have less experience that bears on the work of a justice than any entering justice in the last five decades or more. Beyond zero judicial experience, she has only a few years of real-world legal experience. She had never argued in any court before becoming solicitor general last year.* And during her entire career in academia, she has written only a handful of scholarly articles.
Equally striking, and a cause of concern to many on the left, is how guarded Kagan has generally been about expressing her political and legal views over the last couple of decades. Tom Goldstein, a hyperconnected D.C. lawyer and blogger who is so close to Kagan that she invited him to offer the formal motion for her admission to the Supreme Court bar last year, says that he doesn't “know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.” One liberal law professor who reviewed her academic writings summarized them as “cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it's unlikely to offend anyone in a position of power.”
Kagan wasn't always so reticent. In a revealing piece that she wrote for Princeton's student newspaper days after President Reagan's election in 1980, she described her despair at the takeover of the Senate by Republican “avengers of 'innocent life' and the B-1 bomber,” and especially at Alfonse D'Amato's defeat of Liz Holtzman, for whom Kagan had campaigned so hard in the New York Senate race. Her “gut response” on Election Night had been an “emotion-packed conclusion that the world had gone mad, that liberalism was dead and that there was no longer any place for the ideals we held or the beliefs we espoused.” Much as she tried to reason her way out of her despair, she still had to “wonder how all this could possibly have happened and where on earth I'll be able to get a job next year.”
In her senior thesis on the history of the socialist movement in New York City, Kagan found it puzzling — something that “cries out for explanation” — that Americans “are more likely to speak of . . . capitalism's glories than of socialism's greatness.” She lamented the story of the “strange death of socialism in New York City” as “a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America.”
It's fair to hope that Kagan's political views have matured over the years, but there's no reason to doubt that Kagan's general political and legal outlook remains decidedly of the Left, even if she has been quiet on specific issues. Those who know her well vouch that she is, as a White House handler has declared, “clearly a legal progressive.” In a 1993 reflection on her clerkship with Justice Thurgood Marshall, Kagan celebrated Marshall's view that the Supreme Court had freewheeling authority “to safeguard the interests of people who had no other champion” — indeed, that the Court “existed primarily to fulfill this mission.” Complaining that “some recent Justices have sniped at [Marshall's] vision” of the Court and the Constitution — not just disagreed with it — she called that vision “a thing of glory.”
Elsewhere Kagan has denigrated the “extreme conservatism of [Robert] Bork's known views” and lauded his 1987 borking as a model of “a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee.” She's referred in passing to the “ultimate wrongheadedness” of “much of Justice Scalia's work” (even w
hile praising its “quality and intelligence”). And she's called Ruth Bader Ginsburg a “well-known moderate.”
One striking exception to Kagan's guardedness was her vehement rhetoric, and aggressive conduct, as Harvard Law School dean against what she called the “military's discriminatory recruitment policy.” What Kagan condemned as “a profound wrong — a moral injustice of the first order” was the continued existence of the Clinton administration's Don't Ask, Don't Tell policy on gays in the military, which implemented a provision of law adopted by a Democratic-controlled Congress. That policy was bolstered by the 1996 Solomon Amendment, which denied federal funds to universities that discriminated against military recruiters.
When she first became dean in 2003, Kagan, to her “deep distress,” followed the course of action that her predecessor had adopted the previous year: permitting military recruiters to avail themselves of the resources of the law school's jobs office so as not to jeopardize the flow of federal funds to Harvard. One year later, though, after a federal court ruled that the Solomon Amendment was unconstitutional, Kagan saw an opening to be more aggressive. Even though the legal effect of the court ruling was suspended pending Supreme Court review, Kagan decided to bar the military recruiters from the law school's jobs office in the “hope . . . that the [Defense] Department would choose not to enforce its interpretation of the Solomon Amendment.” (Kagan's defenders try to make much of the fact that the military recruiters could still try to coordinate interviews via a student veterans group, but the group made clear that its meager resources couldn't possibly duplicate the services of the jobs office.) The following fall, when it had become clear that DOD believed that Kagan's barring the recruiters from the jobs office violated the Solomon Amendment, Kagan reverted to the policy of giving the military recruiters access to the jobs office while harshly condemning what she continued to stigmatize as the military's policy.
In 2005, Kagan also signed her name to an amicus brief in the Supreme Court case that offered a reading of the Solomon Amendment that Chief Justice Roberts determined would have rendered it “largely meaningless.” His opinion (in Rumsfeld v. FAIR) rejecting the various challenges to the Solomon Amendment was unanimous; not a single justice agreed with Kagan.
In sum, Kagan, in an exercise of cheap moral posturing, elevated her ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. She directed her verbal fire entirely at the military, not at the politicians who in fact bore ultimate responsibility for Don't Ask, Don't Tell. In the midst of war, she violated federal law by treating military recruiters worse than she treated the elite law firms that were donating their legal services to anti-American terrorists and suspected terrorists. As Peter Beinart, the liberal former editor of The New Republic, has put it, barring military recruiters from the jobs office amounted to “a statement of national estrangement,” of Kagan's “alienating [her]self from the country.”
Kagan also appears to have indulged her ideological bias on gay rights as solicitor general by undermining federal laws that she was duty-bound to defend. She failed to seek Supreme Court review of a rogue Ninth Circuit ruling that threatened Don't Ask, Don't Tell and that subjected the military to burdensome litigation. And under her charge the Department of Justice filed a brief that gratuitously abandoned strong grounds for defending the Defense of Marriage Act. One proponent of same-sex marriage celebrated the brief as “a gift to the gay-marriage movement” that “will no doubt make its way into judicial opinions.”
(In light of unfortunate speculation about Kagan's sexual orientation, I will note that the White House, surely after carefully verifying the matter with Kagan, has emphatically rejected rumors that she is gay. My exploration of the one area about which Kagan has been particularly vocal should not be mistaken as some sort of coded statement about her.)
Because so little is known about Kagan's legal and policy views, and because what little is known suggests that she may well indulge her sense of empathy in making legal judgments, it is especially important that the Senate conduct a thorough examination of her views. Kagan herself has made the case for doing so. As she complained in a book review 15 years ago, “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” She urged exploration “first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues.” The Senate should “insist on seeing how theory works in practice by evoking a nominee's comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces.”
Unfortunately, the Obama team now appears to be trying to walk Kagan away from her position. Of course, every White House, aiming to minimize the political costs of a nomination battle, wants to limit the scope of questioning of its nominee, even if the nominee has clear majority support in the Senate. What may be surprising is how many senators — especially Republican senators — have acquiesced in this practice, including for opposite-party nominees. Perhaps that's because the senators have made the strategic judgment that limited scrutiny will somehow yield better justices overall. Or perhaps they've decided that limited scrutiny makes nominations less controversial or less well-defined and thus makes it easier to exploit inattention or ambiguity to minimize the downside political costs of their votes.
With 59 Democrats in the Senate, Elena Kagan is a sure bet to be confirmed this summer. That doesn't make the inquiry into, and debate over, her judicial philosophy unimportant. It even means that she is especially well positioned to improve the confirmation process — along the line that she's advocated — by committing to provide the Senate a meaningful discussion of her legal views.
* Correction: Kagan had never argued any appeals. But her Senate questionnaire response indicates that as a junior associate in private practice she did argue one summary-judgment motion in one case and two motions — “to compel release [to the public of certain] transcripts and to prevent redaction” — in another.
Mr. Whelan is president of the Ethics and Public Policy Center. He contributes regularly to National Review Online's Bench Memos blog.