Kagan nomination reflects Obama’s centrist vision

May 11th, 2010 by

http://www.theglobeandmail.com – U.S. President Barack Obama stressed Elena Kagan’s “openness to a broad array of viewpoints” and “skill as a consensus builder” in presenting her as his choice for the Supreme Court – the second of his young presidency.

His depiction of the 50-year-old Ms. Kagan reflects his own centrist vision for a top U.S. court that leaves policy to the politicians, and, more immediately, his eagerness to avoid a contentious nomination battle on the eve of this fall’s midterm congressional election.

With the appointment of Ms. Kagan, who currently serves as Mr. Obama’s Solicitor-General, the President said he relished “the prospect of three women taking their seat on our nation’s highest court for the first time.” And in naming someone without previous experience as a judge, Mr. Obama practised what he preached and reached outside the “judicial monastery” to inject more diversity into a body whose current members are all former appeal court judges.

If the electoral considerations provide Mr. Obama with a short-term motive for naming a centrist like Ms. Kagan, the President’s longer-term aim is to rein in what he sees as the judicial activism of the court’s dominant conservative clique.

Rather than naming a strident liberal as a counterweight to Chief Justice John Roberts – a provocative move that would please his Democratic base – Mr. Obama figures the surest way to correct the court’s tilt to the right is by appointing a proven pragmatist and bridge-builder.

“Obama has found in Kagan the kind of justice [similar to what] he’s tried to be as President,” George Washington University law professor Jeffrey Rosen offered in an interview. “He has clearly signalled he wants a justice who can reach out to the other side, to conservatives … He’s not interested in returning to the old 1960s days of liberal activism.”

Republicans are girding for an opportunity to portray Ms. Kagan, who now faces confirmation hearings before the Senate Judiciary Committee, as an apologist for the administration’s “big government” agenda.

But the former Harvard Law School dean – the first woman to serve in the post – has given them precious little material to work with. If confirmed, she would be the first justice in nearly 40 years without judicial experience. As such, Ms. Kagan has not generated a long paper trail of past decisions from which senators could glean her judicial philosophy.

“You don’t necessarily need a judicial background to be a good judge. But in today’s political environment, her lack of judicial experience will be controversial,” said Adam Winkler, a professor at the UCLA School of Law. “Republicans need to find something and this is what they will find.”

Ms. Kagan’s personal politics are mostly liberal. As Harvard law dean in 2004, she briefly banned military recruiters from the campus career office to protest against the policy that bars gays from serving openly – which she called “a moral injustice of the first order.”

Mostly, however, her tenure at Harvard was marked by her move to lure prominent conservatives to a faculty that, according to Mr. Obama, “had gotten a little one-sided in its viewpoint.”

And as Solicitor-General, she displeased civil rights advocates with her expansive interpretation of executive power in combatting terrorism.

Mr. Obama’s preference for judicial restraint in part reflects his desire to protect his own legacy. In coming years, the Supreme Court will almost certainly be called to rule on the constitutionality of some of his signature initiatives, from his health-care reform package and promised climate-change bill to his expected move to limit corporate spending on elections.

In a 5-4 decision, the Roberts court in January struck down prohibitions on direct corporate and union spending on election advertising as a violation of free speech. Mr. Obama has repeatedly decried the ruling and has suggested he will seek to pass new legislation to reverse it.

But if Mr. Obama indeed has the liberal agenda of which Republicans and Tea Partiers accuse him, he does not believe it is the role of the court to accomplish for him what he cannot achieve through Congress.

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself out politically,” Mr. Obama said last month. “Liberals [in the sixties and seventies] were guilty of that kind of approach. What you’re now seeing is a conservative jurisprudence that sometimes makes the same error.”

There is no guarantee that Ms. Kagan would uphold Mr. Obama’s plea for judicial restraint. All justices evolve in their thinking. Retiring Justice John Paul Stevens, whom Ms. Kagan would replace, was considered a conservative when he was appointed by Gerald Ford in 1975, but went on to become the court’s staunchest liberal.

As the youngest member of the court, Ms. Kagan would have a hand in shaping American jurisprudence for decades to come – provided she survives her grilling by Senate Republicans.

In an earlier life, Ms. Kagan ridiculed the “air of vacuity and farce” that had come to characterize the confirmation hearings of Supreme Court nominees and implored senators to ask tough and probing questions of prospective judges who are poised to serve for life.

“What is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate,” Ms. Kagan wrote in 1995 after the confirmation of Ruth Bader Ginsberg, with whom she would now serve on the court.

As she faces a confirmation hearing of her own, Ms. Kagan risks tasting the medicine she once prescribed.


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