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.