Elena Kagan to Receive Nomination

According to several news reports, President Obama will nominate Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens.  Because Kagan lacks a long paper trail of academic writings, it is difficult to predict her judicial philosophy.  From a political perspective, this could potentially help Obama avoid a long confirmation battle. Nevertheless, some critics who want to preserve the ideological makeup of the Supreme Court, believe that Kagan could actually push the Court rightward.  If these arguments take hold, then Kagan could face serious questions about her ideology and judicial philosophy from both liberals and conservatives.

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4 Responses

  1. Ken says:

    Perhaps in assessing her abilities, her lack of volume can be somewhat compensated by the quality of her writing. For example, her Harvard Law Review article Presidential Administration was picked as the year’s top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice.

    As to “judicial philosophy,” I think the second sentence should read like this: “Because Kagan lacks a long paper trail of academic writings, it will be said by some Nike Republicans (‘just say no’) that ‘it is difficult to predict her judicial philosophy.'”

    Senator Hatch, for example, might posit this strawman as his latest excuse to try to prevent the Senate from even considering her nomination. For the rest of us (and the Senate, I think), the sensible way to “predict her judicial philosophy” might be to ask her, then compare her answers to what she has written and done in her career.

  2. Darren Hutchinson says:

    Ken: I do not wish to demean the ABA Administrative Law section prize, but I think many academics expect more volume from tenured professors — especially those with such prestige and acclaim.

    Second, I believe that liberals as well as conservatives can raise legitimate questions about Kagan’s ideology and judicial philosophy. Hatch’s opposition might lack merit, but this does not mean that all questions will inevitably come from a “Nike” mindset.

  3. Ken says:

    Darren, you are surely correct that academics expect more volume from tenured professors. My comment related to U.S. Senators, who are the ones who have to make the judgment. I believe most senators base those judgments on many factors, including written judicial opinions (which, of course, she doesn’t have), but not including the details written into a career of non-judicial writings.

    Again, you are surely correct that there will be many legitimate questions, from both sides of the aisle. And if Senator Hatch has objections, I do not claim they are without merit. My zinger was specifically related to the “just say no” approach of Senator Hatch last time around, and his (IMO) unconscionable tabling of her prior nomination, instead of letting it come to the floor where it could have received the debate it deserved.