A Progressive’s Defense of Elena Kagan

Mere moments after President Obama announced Solicitor General Elena Kagan as his choice to replace retiring Supreme Court Justice Stevens progressives denounced the nomination as an affront to Stevens’ legacy and further proof that the President had abandoned the very base that worked so hard for his election.  The ever-vocal members of Firedoglake pitched what can only be described as a total tantrum at the nomination, proclaiming Kagan an unqualified careerist not fit for even a summer associate position at a New York law firm let alone Justice of the Supreme Court.  Over at Salon.com, Glenn Greenwald scolded the administration for a pick with an “abysmal” record on diversity, and critics everywhere wrung their hands over Kagan’s betrayal of women in crafting abortion policy while serving as part of President Clinton’s staff.  Finally, those critics on the left who actually acknowledged that Solicitor General Kagan does have some worthwhile experience dismissed her record as Solicitor General as one that did little more than rubber-stamp the Obama administration’s continuation of Bush-era detention policy.

But not so fast.

Let me first say that, as a progressive, Solicitor General Kagan was not my first choice to replace Justice Stevens.  And to be fair, she probably wasn’t my second either.  But, she is an excellent choice and the attacks thrown at her from the left are ill-informed and, well, exactly what I expect of the right.  That said, it’s worth it to take a moment and unpack both the critique and Solicitor General Kagan’s record.

1.  Kagan is Unqualified

As noted earlier, Elena Kagan is the current Solicitor General of the United States and former Dean of Harvard Law School.  She graduated from Princeton with honors, received her Masters of Philosophy from Oxford, and graduated, with honors, from Harvard Law School.  She clerked at both the U.S. Court of Appeals for the D.C. Circuit and, most notably, at the Supreme Court under Justice Thurgood Marshall.  Following her clerkships she entered private practice and then onto academics at the University of Chicago where she obtained tenure in 1995.  While teaching at the University of Chicago she focused on administrative law and First Amendment issues and was senior counsel to then-Sentaor Joe Biden who was, at that time, chair of the Senate Judiciary Committee.

Between 1995 and 2000 she served as President Clinton’s Associate White House Counsel, deputy assistant to the President for Domestic Policy, and deputy director of the Domestic Policy Council.  In 1999 she was nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit but Senator Orrin Hatch refused to schedule a hearing for her.  She then moved to Harvard Law School were she became the law school’s first female dean.

But those academic and professional qualifications have not quieted her critics on the left who charge that it is her lack of judicial experience that is the real issue.  Well, neither have 10 former Chief Justices and 30 Associate Justices including Chief Justices Earl Warren and William Rehnquist, and Associate Justices Louis Brandeis and William O. Douglas, just to name a few.

Furthermore, professional diversity in general is a good thing, but particularly in the world of the law.  In many ways the judicial chamber is as privileged a space as the ivory tower of academics, a place where the law can become over-intellectuallized and separated from its impact on citizens.  Judges develop habits that, well, can create intellectual laziness, no matter how brilliant the mind.  Solicitor General Kagan is as qualified to be on the Court as former Chief Justice Earl Warren and to suggest otherwise hints at a bias that has more to do with Kagan’s gender than it does her credentials.

2.  Kagan Has a Poor Diversity Record

Glenn Greenwald over at Salon.com has been the most visible of Solicitor General’s critics on the issue of diversity during her tenure at Harvard Law School, but others have certainly picked up the theme as well.  And at first glance, her record does look pretty bad.  But, similar to the critique of her time as Solicitor General, it ignores a lot of institutional realities and uses evidence that is not all there.

While Dean at Harvard Law School Kagan oversaw the hire of 23 white men, 5 white women and one Asian-American woman, and no black or Latino professors.  And if those numbers were the only measure of Kagan’s commitment to diversity I would certainly not be making a case for her defense.

But as her colleague Professor Charles Ogletree Jr., the Jesse Climenko Professor of Law and Harvard Law School and the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice details in a passionate letter of defense, this is just not so.  As Dean Kagan pushed the faculty to extend appointments to African American and Latina candidates, some of whom chose to remain at their respective institutions rather than accept a position at Harvard.  Furthermore, she was instrumental in creating a generation of diverse practicing lawyers who would accept clinical appointments at Harvard in addition to overseeing the increase of the number of African American students from 10% of the total population to 31%.  These accomplishments merely scratch the surface of Dean Kagan’s tenure.  For a full accounting of her dedication to issues of diversity at Harvard Law, please click here.

3.  Kagan is Weak on Abortion Rights

This is a critique that puzzles me the most.  While a domestic policy aide to President Clinton, Kagan sent the President a memo urging him to endorse a ban on late-term abortions sponsored by Senator Tom Daschle.  Daschle’s amendment was not as restrictive as other measures in the Senate, and the move was a strategic measure designed as a way to defeat the more restrictive measure and insulate President Clinton from having to exercise a Presidential veto.  Yet, this memo is being used against Kagan as proof that she would sacrifice women’s health issues or, worse yet, be the vote that could overturn Roe v. Wade.

This critique misses a few key points.  First, there is an enormous difference between crafting positions of policy and strategy and judging the law.  Kagan has already come out and stated, unequivocally, her support for stare decisis, which in the world of judicial confirmations means an unwillingness to overturn precedent like Roe.  Second, the advice given to President Clinton was designed to try and prevent an even more restrictive abortion measure from passing and insulate her boss, which suggests a woman trying to strike a difficult balance between remaining true to her values and doing her job effectively. Ultimately the more restrictive measure was passed by the Republican Congress, but did not become law because of a Presidential veto.  So, while she couldn’t protect President Clinton from having to use what some saw as a controversial veto, the abortion measure did not become law.  In fact, it wasn’t until the Bush administration, with the help of the Roberts Court that the Partial-Birth Abortion Ban became law.  To suggest that Kagan was anything other than trying to protect a woman’s right to chose is quite simply, absurd.

4.  Kagan as Solicitor General has Argued Bad Law

Finally, those on the left have looked at the cases involving Solicitor General and have criticized her for the continuation by the Obama administration of Bush era detention policy.  This critique misunderstands the role of the Solicitor General and shows, much like the arguments against her time at Harvard, a misunderstanding of the nature of institutional leadership.

The Solicitor General’s job is to advance the position of the administration before the Court.  In the case of many detention decisions, these cases originated in the Bush White House.  Some were abandoned by the Obama administration, while others were not.  Those that were pressed contained reasonable arguments in support of continued detention of specific individuals or of already-etablished FISA powers.  To maintain these positions before the Court is exactly what Solicitor Kagan is supposed to do.

As a vocal critic of many of these policies I am among the left that has felt left behind by the Obama administration’s persistence that executive authority has a broad reach.  But that is an issue to take up with the President, not his lawyer.

As we get closer to possible confirmation of Kagan I assume the critiques will get sharper and the need for explanation more pressing.  Demanding Elena Kagan clearly articulate her positions on executive authority, privacy, and the rule of law is an exercise I look forward to, from both the right and the left.  But what has been charged at her so far has been far from that–rather, it’s been nothing more than politics as usual and, like politics as usual, has yielded little more than sound bites and spin.

photo courtesy of Harvard Law Record via Flickr


Inez Deborah Altar

some people want someone easy on the supreme court and they don´t like her because she is not onlhy maybe there could be a risk of favouritism...

Pat Tyler
Pat Tyler7 years ago

Look at her rulings in other positions and choose on her ability only.

Morgan G.
Morgan Getham7 years ago

I think Kagan must be a pretty good nominee – the extremists on both the right AND the left are frothing at the mouth over her appointment.

Yes, she may make a common cause with Justice Thomas ... in defense of freedom of speech, which is one of his "hot button" issues.

Yes, she is likely to piss off the Limousine Liberal Hollywood crowd because of her defense of citizens "Fair Use" rights to copyrighted material. Boo Hoo for them.

Although her confirmation hearings will undoubtedly reveal a lot more about her judicial philosophy (which the lack of a judicial "paper trail" has left in doubt) so far she seems to be shaping up as a consensus-builder who is seriously interested in protecting the rights of individuals within the scope and run of the law. Nobody is suggesting that she is going to be a justice who will "legislate from the bench" (which, given the court's propensity to do that on the Right these days is probably a good thing).

And more pragmatically, it seems that there is not a ghost of a chance that she will NOT be confirmed as the next Justice of the Supreme Court. She has enough moderate Republican support to break a filibuster attempt, and the Democratic majority in the Senate is not going to give the President a black eye (and weaken his party) going into the mid-term elections by rejecting his nominee. Barring a lesbian lover surfacing or something like that, she is sure of confirmation.

Sue D.
Susan L7 years ago

Wowsux - I beg to differ with you. Yes there IS defense for Progressive, or others, even the jaded and cynical such as yourself, it is called freedom, as in USA. We all have a right to our beliefs and political opinion.

Speak for yourself, YOU are not the voice of 'what the people want or do not want.'

According to a 2002 Gallop poll, the figure is more like 10% of the population is gay, AND the number of Americans saying they feel homosexuality should be considered an acceptable alternative lifestyle has gone from 38% (June 1992) to 51% (May 2002). But you are correct, that should have nothing to do with this discussion, but YOU brought it up for your pointless argument that Obama used it to 'stir the pot' whereas it is more like YOU trying to stir the pot like ultra conservatives tend to do with that topic. As a matter of fact, people have many good reasons to back her appointment, but of course, you don't read those. Could it be you are the one being manipulated, not 'sharp' enough to think for yourself and look up information from sources that are un-biased?
Maybe it is those who are sooo critical that should move... to someplace that wants our laws to be more like maybe China.
You use 'socialist' like it is a completely terrible word, but MANY countries (like Canada) have some forms of 'social services' including the USA. I bet you won't turn down 'Social Security' checks at 65 or food stamps if you found yourself disabled or out of work for a long period of tim

Nikolas Karman
Nikolas K7 years ago

Karen c has clearly identified what this is all about. Anybody whoever tries to do the right thing for humanity sakes will end up shot just like Kennedy and the gullible will soak up the media bullshit as fact just so they don't have to do something about it, even to acknowledging that these criminals exist in the offices of the international banks and Vatican and learn to understand that all religions are under the direction and control of one. I will leave you all to work out which one.

Russell G.
Russell G7 years ago

Interesting that almost all of these comments are from women. As the father of 3 women, two of whom are already making a mark in their chosen fields, one as a married woman and one not, I get the concern for having more women on the court. Kagan is eminently qualified. As a lifelong progressive I have come to realize that none of us can have all that we want. Kagan's time with Thurgood Marshall had a profound effect on her. To say that she knows nothing of adversity because she has not been a judge is akin to stating that I know nothing of women because I was not born one. does that mean I should be whining about not having a guy picked to replace a guy? Elena Kagan has a powerful intellect, an honorable record (though I have found much to disagree with), and is as deserving as many who have come to this position before her. Obama took leadership after eight years of lunacy, has to fight an entrenched and inflexible Republican opposition (who said there were only 2 points of view in a nation of 300 million anyway?), and now he is condemned not only by the right but by the left as well. What a thankless job!! This is a good choice and Kagan should be confirmed.

Janice P.
Janice P7 years ago

I agree with Karen C. Our nation is always sold to the highest bidder. This is yet another missed opportunity. What a surprise.... Those of us who worked to get Obama elected believed his rhetoric and had hoped that he would help usher in the dawn of a more progressive era. Instead all we have gotten for our efforts is compromise. A person who does not stand for his or her principles, stands for nothing.

A Supreme Court appointment is no place to compromise ones principles. That choice will be with us for decades. Yes, the court needs more women. In fact, its composition needs to be more reflective of our population as a whole, but Justice Stevens should be replaced by someone who is more progressive than Kagan. The swing to the right has already been evident. It will continue its veer if she is appointed. Only a liberal can make up for the atrocious appointments we have had since the 80's. This nation is going to take a turn that most of us are not going to like, a turn back to decades of the past. Our only hope is for a constitutional convention to limit terms of all federal judges, and the likelihood of that happening is about as slim as the US getting an honest government..

Carol H.
Past Member 7 years ago

I can not judge someone I don't even know but the thing is she is a woman and that is the only thing the men feel like they are getting more and more endangered so they will say or do anything for her not to be good enough to be on the Supreme Court.

I don't really care what she doesn't in her personal life because the word is "personal" as in it is none of our business what she does or not do and that is fact.


Helen Allard
Helen Allard7 years ago

I'm comfortable with her, bout time we had some more women in there to even out the playing field, been a good ole boys club for too long

Lynn C.
Lynn C7 years ago

Thank you, thank you, thank you! There has been so much vitriolic media coverage, I had no idea what to think of the nomination. This President has been maligned over and over again for his efforts. We have no idea of the constant pressure and the strength it takes, day after day, to get something positive done. He is amazing!