Conservatives say potential Supreme Court pick Elena Kagan’s views far from ‘moderate’

After Marshall died in 1993, Kagan gave a speech in his honor. She said Marshall’s view of the judiciary was that its primary purpose was to “show a special solicitude for the despised and disadvantaged … to safeguard the interests of people who had no other champion.” Kagan said, of Marshall’s liberal views on the topic, “however much some recent justices have sniped at that vision, it remains a thing of glory.”

At every step in her career, Kagan has drawn gushing praise, often of her ability to bridge warring factions with Solomon-esque wisdom. At Harvard, for instance, she ended a feud between Marxist critical legal theory acolytes and regular liberals that had brought hiring to a freeze by hiring from both sides.

Those hires included several prominent conservatives, who were grateful for Kagan’s beneficence. In fact, right-wing lawyers such as President Bush’s Solicitor General Ted Olson and Bill Clinton’s former worst nightmare Ken Starr wrote in to support Kagan’s nomination for solicitor general.

The lawyers, in their letter, noted “the extraordinary skill she has demonstrated in bringing to Harvard an impressive array of new scholars” and said her “brilliant intellect … directness, candor and frank analysis will make her an especially effective advocate” for the government.

Other conservatives are rejecting the lawyers’ support. Wendy Wright, president of the Concerned Women for America, says they suffer from “Stockholm syndrome,” and that just because Kagan was nice to conservatives at Harvard “doesn’t make her qualified for the Supreme Court.”

The other thing critics say about Kagan is that her paper trail is so short, it’s almost suspicious.

Tom Goldstein, who is not one of those critics, wrote on SCOTUS Blog, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade. Now, there are obviously an awful lot of people whom I do not know. But I have never talked to anyone who talked to anyone who had a conversation like that.”

On some issues, like the 2nd Amendment, almost nothing is known about Kagan’s views. She moderated a debate on the issue in 2003, but law professor Eugene Volokh, who defended gun rights at the debate says he learned “nothing at all” about her views on the subject at the event.

While Goldstein says nobody in his presumably elite circles has chatted up Kagan on say, the nondelegation doctrine lately, at least one man claims to have sparred with her, and for years! Harvard alumnus Joseph Flom wrote in a Jan. 23, 2009 letter in support of Kagan’s nomination for solicitor general that one of the reasons he was convinced she’d be “outstanding” for the job is he “had an opportunity over several years to debate current legal issues with her.”

Reached by phone, Flom, an 86-year-old lawyer who specialized in mergers and acquisitions said he remembers “nothing” about Kagan’s political views, merely that the conversations revealed how even-handed and open-minded she could be. He did say she wasn’t in the critical legal studies school and compared her to long-ago high court justices Louis Brandeis and Dennis Cardozo.

Kagan’s saving grace may have been her view that the Senate should grill Supreme Court nominees to ensure they know what they’re getting. In a 1995 book review she wrote “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” But in 2009, she was “less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”