President Obama’s selection of Solicitor General Elena Kagan has been met with mixed reviews. Those on the left worry she’s not left enough, while those on the right just worry. It is likely she will be confirmed because while she may not be everyone’s cup of tea, there is really nothing you can point to that’s a “dealbreaker.” (See, for example, Sotomayor’s “Wise Latina” comment).
We’ve heard the stats: there will now be three women ( a plus); all the justices will have gone to either Harvard or Yale for law school (a minus); she will be the youngest member (a plus, at least if she votes the way I want her to); another New Yorker (a definite plus) and for the first time in US History there will be no Protestants on the bench (6 Catholics, 3 Jews)(neither a plus nor minus). But what do we specifically know about her to lead us to predict how she will fare on the Court?
Since she was never a judge, there are not hundreds of decisions you can look at to try and figure out where she stands. She only practiced law for the first three years out of law school, if you call working as a junior associate at a huge law firm “practicing law.” She has been a “policy” person all her life: advising politicians, serving as a deputy White House Counsel; Dean of Harvard Law School; and finally Solicitor General for two years. This is, in my opinion, a bit light on reality. It is ok that the job of Supreme Court Justice is an Ivory Tower-type position, but do we want our Justices to shift from Ivory Tower to another? Isn’t it better if our Justices have been dealing with the law as it is applied to that vast majority of the country? Here’s another judge who has never tried a case or represented a client in court or even presided over a trial or an appellate argument, now being one of 9 people who decide the law of the land. Her alleged strength is that she will be a counter-balance to the persuasive and thoughtful Antonin Scalia and that therefore she may be able to swing Justice Kennedy to the left once in awhile on close issues. Let’s hope that happens.
I am not saying the President should have picked Judge Judy, but another Justice in the model of Sotomayor would have been preferable to me. I tend to like judges who have some real life experience before the take the bench. Policy discussions without real life application never solved anything.