For all that we don’t know about Elena Kagan, what we do know is that she is a Washington insider that President Obama knows well, and that’s why Obama has picked her to become our next Supreme Court justice. Kagan is a former colleague of Obama at University of Chicago Law School and is now working for Obama as the Solicitor General. As I’ve stated previously, at a time when the federal government is now bigger and more powerful than it has ever been, now is not the time to allow a stealth nominee with long-standing ties to the President to become one of nine people who are to act as our last check on executive and legislative power.
So what do we know about Elena Kagan? She is an out-of-touch northeast liberal. As dean of Harvard Law School, she kicked the military off campus during a time of war in violation of the law. Her action was premised on such shaky grounds that the Supreme Court rejected it unanimously. Then in her first case before the Supreme Court, Kagan’s legal arguments were rejected by the Court again (Citizens United v. Federal Election Commission). This was the same case that Obama inappropriately singled out in his State of the Union address as being wrongly decided. This point should be emphasized: Obama is nominating Kagan – who argued and lost the case that Obama is now encouraging Congress to bypass – to the court that he feels wrongly decided this case.
What else do we know about Elena Kagan? She is a stealth nominee. Kagan has never been a judge on any court, federal or state, trial or appellate. A judicial record is something the public overwhelmingly favors in a Supreme Court nominee. Kagan doesn’t have it. Nor does she have much of any other published record. It is atypical how little Kagan has written for someone now touted as a “brilliant” “scholar.”
Kagan is inexperienced. She doesn’t have an appellate track record as a lawyer. Before her term as Solicitor General, Kagan had never even argued a case in an appellate court. After being confirmed to the position of Solicitor General (the chief advocate for the United States) Kagan took the extremely unusual step of declining to appear before the Supreme Court during her first term. In hindsight, given what happened during her first disastrous Supreme Court argument, perhaps that was wise, but it certainly does not inspire confidence in her as a nominee to the Court.
Elena Kagan has written that “the Senate’s consideration of a nominee, and particularly the Senate’s confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct. Like other kinds of legislative fact-finding, this inquiry serves both to educate members of the Senate and public and to enhance their ability to make reasoned choices. Open exploration of the nominee’s substantive views, that is, enables senators and their constitutuents [sic] to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires.” The Senate must now do just what Kagan asks and engage in exactly this type of scrutiny of her nomination. The little information we do know about Kagan leads to the very serious danger that the President could be appointing a rubber stamp for his radical agenda to expand government power over every area of our lives.
We may not know much about Elena Kagan, but we do know she’s Obama’s gal. And that’s no way to pick a Supreme Court justice.
Mia Reini is a policy specialist in Notre Dame, Indiana and an attorney licensed to practice in New York, Massachusetts and Washington, D.C. All opinions expressed are her own.