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?

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8 Responses

  1. anon says:

    True enough. Kagan is an undistinguished scholar and an uninspiring legal mind — surely not at a level of, say, Kathleen Sullivan or Pam Karlan. But, unlike the latter two, Kagan is a very sophisticated institutional player. This is a significant improvement on Sotomayor, who is neither a notable thinker nor an artful coalition builder.

  2. Dan Cole says:

    Next SG: Cass Sunstein?

  3. Tuan says:

    A surprising pick because a very risky one. The clock is running on this nomination and if it doesn’t fly, the Obama administration will be facing the prospect of another nomination.

  4. Josh Chafetz says:

    Neal Katyal would seem the logical choice to step up as SG, no?

  5. dave hoffman says:

    How about evaluating the case for her – what do you think of her (imho groundbreaking) article on presidential administration? Her work in the clinton white house on policy? Her justly acclaimed role as a teacher of administrative law?

  6. Gerard Magliocca says:

    There are lots of great teachers of administrative law. What makes her special? As for the article, I think it’s vastly overrated. But like I said, in the case of articles everyone can go read them and form their own conclusions.

  7. Anonymous says:

    Next SG is apparently Don Verrilli – a brilliant, accomplished, and humble selection.

  8. Bryan Gividen says:

    Not that every non-judge SCOTUS nominee is Earl Warren, but I think that if you had to classify Kagan, she would fit the bill. Obviously Warren’s resume is a little more impressive – especially his comparatively extensive time as an AG – but in the end, he was a consensus builder. He was the guy on the Court who wasn’t the best writer or orator, or so I’ve read, that could get justices together and produce a solid group response.

    It sounds like that could be Kagan’s forte.