The Kagan Nomination
Various news outlets are reporting that Elena Kagan will be the next Justice pending confirmation. Earlier today I said this would be a really lackluster and troubling choice. Troubling, I think, was too strong. But I’m sticking with lackluster. Her nomination is like going to a five-star restaurant with a fantastic dessert menu and ordering vanilla ice cream.
Let’s consider the nominee’s record. Is she a stellar Solicitor General? Hardly. Her office’s handling of Citizens United was a disaster and her oral arguments in other cases were plodding at best. Is she an outstanding writer? No, though you can read her (few) law review articles and judge for yourself. Was she a good scholar? Well, the University of Chicago Law School must not have thought so, as they apparently did not ask her to come back after she served in the Clinton Administration. Does she possess a judicious temperament? The people who worked most closely with her and for her will have to answer that one.
Ultimately, her only real credential is that she was a good dean at Harvard Law School. (Of course, she was a good dean during the bubble and got out just as the gravy train left town, but that’s not her fault.) Is that supposed to be compelling? I don’t see why. Able administrators are important, but I don’t think that correlates with what makes someone a good appellate judge.
Now am I saying that Kagan should be rejected? No. I’ve made it clear with respect to Goodwin Liu’s nomination that I think the President’s picks should be approved by the Senate so long as the person is qualified and falls within the mainstream of the President’s party. The SG clearly fits the latter criterion and (marginally) meets the first one. (I mean, she not Harriet Miers.) And who knows, maybe she’ll turn out to be a great Justice. But it’s a risky bet.
UPDATE: So who will the new SG be?