With confirmation hearings set to begin on June 28, and some 90,000 pages of papers released involving Kagan’s work in the law, Senate Republicans are grasping for anything they can to paint Kagan as a leftist ideologue. The problem for those Republicans though is that Kagan is nothing of the sort.
What the papers illustrate is Kagan’s thinking as a pragmatist and a centrist. Take for example a 1997 memo on an affirmative action case, authored by Kagan when she was a presidential assistant for domestic policy. A New Jersey school district, when given the decision of firing two equally qualified teachers chose to fire the white teacher over the black one and defended the decision based on the grounds that it was part of an overall effort at maintaining diversity in the workplace. Many in the Clinton administration wanted to side with the New Jersey school district, but Kagan sided with Walter Dellinger, then the solicitor general, and backed the white teacher to prevent the case from going to the Supreme Court. Had the case gone to the Supreme Court it could have used it to strike down a series of affirmative action programs–a result that would have had far reaching consequences beyond the loss of a single job. The decision reflects Kagan’s understanding of the interplay between law and policy and shows an ability to look beyond the immediate impact of a case forward for its larger historical and cultural significance.
Perhaps that is a skill picked up by Kagan during her time with Justice Thurgood Marshall. Kagan’s tenure with Marshall has been cited by leading Senate Judiciary Republican Jeff Sessions as part of a history of Kagan’s “leftist philosophy” including memos authored by Kagan criticizing a Supreme Court decision that created harsh new standards for convicted criminals to appeal their convictions based on the argument that they had ineffective counsel.
But ultimately, Sessions complaints seem to be tilting at windmills given the overall centrist approach by Kagan on nearly every issue she’s likely to be questioned on during her confirmation hearings and any issues that would come before her as a sitting Justice. And if her writings were not proof enough of that philosophy, the fact that her nomination has troubled both members of the left and the right should signal that she is anything other than an ideologue.
As the Roberts Court has shown a steady determination to march constitutional jurisprudence as far to the right as possible, the real test for Kagan will be whether or not she can harness that pragmatism effectively enough to serve as a counter to the true ideologues on the Court–Justices Roberts, Scalia, Alito and Thomas. I suspect it can and I suspect that it is precisely those skills that would win over Justice Kennedy on some close cases. To that end, her nomination is likely as much about building a jurisprudential legacy as it is replacing a safe liberal vote.
photo courtesy of dsearls via Flickr