Untried, Untested, and Ready

Elena Kagan’s youth and judicial inexperience recommend her for the Supreme Court.

Oh, the virtues of untried youth. Sure, that’s an exaggerated way to describe Solicitor General Elena Kagan, who is, as the New York Times  and others first reported late Sunday, Obama’s Supreme Court nominee. But at 50, Kagan is close to a decade younger than the other front-runners. And she’s never been a judge. That might seem like an odd qualification for a Supreme Court justice. But it means she—and the White House—don’t have to worry about explaining a lot of persnickety legal opinions. You know, the kind that would prove she actually would be the sort of justice that Obama’s Democratic base would like.

In fact, Kagan has no obvious paper trail that makes for sound-bite attacks. Her academic articles are ponderous and abstruse, not Fox News fodder. And she has managed to work in both the Obama and Clinton administrations without marking herself indelibly as a liberal. That turns her lack of judicial experience into an asset. True, she’s not an outsider in the mold of, say, Earl Warren or Sandra Day O’Connor—she doesn’t bring real-world political experience, as they did. (Warren was governor of California, while O’Connor served in the Arizona state senate.) She came to her present job from the deanship of Harvard Law School. This is a different kind of alternative path: It comes straight out of the Ivy League elite but skips the usual last step of federal appellate judge. So much for the Republicans’ success in denying Kagan a spot on the D.C. circuit in 1999.

Kagan also has the virtue, politically speaking, of not being the choice of the left. Salon’s Glenn Greenwald, who thinks she will be to the right of retiring Justice John Paul Stevens on executive power, has been gunning for her since Stevens announced last month he would step down. (Walter Dellinger disagreed with Greenwald’s thesis in Slate.) The latest attack from the left is about Kagan’s minority hiring record while she was dean at Harvard: On Salon, a group of law professors say that of the 32 faculty hires she made, not including Harvard’s clinics while she was dean, only seven were women and only one was a minority. The White House, they say, countered with the numbers for visiting professors during Kagan’s years as dean—not really responsive, the Salon writers point out—and with a statement quoting prominent African-Americans lauding Kagan’s deanship. John Payton, head of NAACP Legal Defense Fund, said in support of her nomination for solicitor general that “Harvard Law School has undergone tremendous transformation and development under her leadership—in its curriculum, in its diversity, and in its vibrancy.” That’s better insulation.

In any case, the calculus from the White House must be: Go ahead, make our day. Attack our potential nominee for her record on minority hiring. That debate could make her seem like a tough upholder of academic standards rather than zealous about affirmative action—all the better for the way she plays outside the base.

As Dahlia Lithwick and I have written before, conservatives will go after Kagan for being “gay friendly.” As dean of Harvard, she gave spirited backing to the lawsuit brought by several law schools challenging the Solomon Amendment, Congress’ effort to stop law schools from treating military recruiters differently from other prospective employers. (Some schools did not allow the military to interview students on campus because of the inequity of “Don’t Ask, Don’t Tell.”) Kagan signed onto a court brief in the case, making a slightly different argument. She also spoke out, saying, “The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country.” But here, too, she’s got protection: She was one of 40 law professors who signed that brief. In law school faculties at the time, people were falling over themselves to oppose the Solomon Amendment. Eight other universities filed briefs, along with 56 Columbia law professors and 44 Yale law professors. At some schools, it was out of the mainstream not to sign. Obama has already said it’s time to start getting rid of “Don’t Ask, Don’t Tell.” The White House can support Kagan’s stand on this issue without taking on a new political battle.

What will Kagan be like as a Supreme Court justice? Much more than Sonia Sotomayor, Obama’s choice for the last court vacancy, or the string of nominees going back to David Souter, we can’t know for sure. Trust us, the White House is saying. The right won’t. But most of the left will come around, especially if Kagan proves broadly popular, as the administration is hoping. She already has many fans among the liberals at Harvard and elsewhere—they’re sure she’s on the team, even if they can’t point to rousing rhetoric from her to that effect. For liberals who are further removed, it may not be heartening to watch tried-and-true judges like Diane Wood of the U.S. Court of Appeals for the 7th Circuit passed over for a younger, blanker face. On the other hand, Kagan has a great smile. Over the next few months, as her hearings proceed, we’ll find out whether it wears well.

Slate V: Kagan is announced as the nominee

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