It didn’t take long. Not surprisingly, even before President Obama had finished announcing his choice of Elena Kagan to fill the Supreme Court vacancy left by the retirement of Justice John Paul Stevens, controversy began to surge around his nominee.

In the course of her career, Kagan was the first woman to serve as Dean of the Harvard Law School and the first woman to be U.S. Solicitor General. Her confirmation would, for the first time in the Court’s history, bring the number of female justices to three. She would also be the first justice in 39 years not to have previously been a judge.

The consensus among media commentators is that Kagan rose to the top of Obama’s short list of brilliant legal minds because, alone among them, she hadn’t left the paper trail that a judge’s opinions create. Unlike Judge Diane Wood, the favorite of progressives, Kagan’s position on abortion and other controversial issues is not a matter of public record. She’s published relatively few scholarly articles and has been very circumspect about revealing her opinions. The thinking is that the administration prefers not to become embroiled in contentious confirmation hearings, and that the paucity of information about Kagan would make her more easily confirmable.

Yet critics from both the right and the left are assailing Obama’s choice. Sen. Jeff Sessions (R-AL) decried “Ms. Kagan’s lack of judicial experience,” even though five years ago during the confirmation hearings for Bush Supreme Court nominee Harriet Miers, Sessions affirmed that “It is not necessary that [Miers] have previous experience as a judge in order to serve on the Supreme Court.”

Begrudgingly acknowledging some of her accomplishments, Sen. John Cornyn (R-TX) said Kagan is “someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience.” Damned if you do, and damned if you don’t.

Sen. Minority Leader Mitch McConnell (R-KY) sneered, “The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training,” ignoring the fact that at least 40 of the 111 Supreme Court justices to date had never sat on a bench before their confirmation. Some of the most outstanding justices (Marshall, Warren, Brandeis, Frankfurter, and Rehnquist, for instance) are in this group. And one of the most significant decisions in American history, Brown v. Board of Education, which formed the basis for ending segregation, was decided by a Court composed exclusively of justices who had never been judges.

On the other side of the ideological divide, Salon blogger Glenn Greenwald fears that Kagan would move the Court to the right. He questions her commitment to diversity, based on the 43 new hires she made for the Harvard Law faculty, most of whom were white men. (Four were minorities and nine were women.) Greenwald, like Kagan’s opposition on the right, is deeply suspicious of her, nailing her as “a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”

Kagan’s public record may slight, but it is available. Greenwald has admitted that he didn’t know about a letter Kagan co-signed in 2005, which denounced a proposal of Sen. Lindsey Graham (R-SC) that would have deprived persons charged with terrorism of the right of habeus corpus, a provision of the Military Commissions Act that was eventually nullified by the Supreme Court.

The most contentious aspect of Kagan’s record is her passionate opposition to the military’s Don’t Ask, Don’t Tell policy and her consequent decision not to give military recruiters free rein on the Harvard campus. Some charge that this decision indicates Kagan’s anti-military bias, yet she also hosted dinners for veterans at the university. Since both Secretary of Defense Robert Gates and Admiral Mike Mullen testified last February to their commitment to ending DADT, the whole argument seems rather irrelevant to me.

Kagan is known to be a consensus-builder, someone with a great capacity for listening to both sides, like the president who’s appointed her. Part of her program for transforming the Harvard Law School was to expand its aging faculty, which she did by hiring several distinguished conservatives in addition to liberals. In the Clinton administration Kagan was the lead negotiator on a bill that was to give the FDA power to regulate the tobacco industry. Working with the bill’s author, John McCain (R-AZ), she also succeeded in enlisting the support of Bill Frist (R-TN), both important Republicans. If confirmed, Kagan will be replacing the justice who is credited with having crafted arguments and negotiations in a way to win over the swing vote to form a majority. Justice Stevens played this role, a crucial one for the progressive minority.

Sexist attacks were leveled at Justice Sonia Sotomayor, and Kagan is in for more of the same.  It isn’t necessary “to go too deep in analyzing the babe,” decreed Rush Limbaugh, following rapidly on Obama’s announcement. “I guess she can change her mind,” he said. “She’s a woman.”

There are persistent rumors that Kagan, who never married, is gay—as though it’s not possible that a woman might choose career over marriage. Or maybe she is gay. Does it really matter? Today? In the 21st century? The American Family Association thinks it does. They believe “no lesbian is qualified to sit on the Supreme Court.” They fear her affirmative vote legitimizing gay marriage in the event the Court decides to take such a case, which seems likely. On the other hand, gay blogger Andrew Sullivan believes that asking Kagan about her sexuality is not “illegitimate,” as he put it, “and it is cowardly not to tell.”

Unfortunately, as a nation we have become extremely polarized. Only a few decades ago, the Senate advised and mostly consented to the president’s nominees. The privilege of appointing justices who reflected the president’s political philosophy was freely granted. The opposition knew its turn would come in the next election cycle or two. Today, outright hostility is the norm. Stay tuned for what could be a rocky ride. I can assure you it won’t be dull.

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  • Susan May 30, 2010 at 9:21 pm

    Here are some quotes and sources below:

    Elena Kagan made some decisions on the curriculum of Harvard Law School that shed a great deal of light on her judicial philosophy. According to CNS News, Kagan moved Harvard Law School away from 100 years of studying case law and the legal precedents established in American courts and moved the focus of Harvard Law School to the study of foreign legal systems and international law. As Dean, Kagan did not simply preside over the changes but advocated strenuously for them. CNS reports as follows on how Kagan used her opportunity to shape the education and judicial philosophy of those who studied under her guidance.

    “My understanding is that she instituted three new courses to the required curriculum and, in so doing, got rid of a requirement to take constitutional law,” Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, told

    “Currently, at Harvard, constitutional law is not required for first-year law students, or even for graduation,” Alt added.

    Indeed, according to Harvard documents, constitutional law is not listed among the law school’s academic requirements, though the catalogue for 2010-2011 does list more than a dozen elective courses dealing with some form of constitutional law.

    It is mind boggling that constitutional law was reduced to the level of an elective subject at the instigation of Ms. Kagan. A shift towards international law and an amalgamation of European laws would never pass muster at the ballot box. Changing the legal training of lawyers is a powerful way to alter the future of the American judiciary that of course sidesteps the electoral process.


    “At least some members of the court find foreign law relevant in at least some contexts. When this is the case, I think the solicitor general’s office should offer reasonable foreign law arguments to attract these justices’ support for the positions that the office is taking.”

    In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to “a transnational perspective” as being “foundational” as “part of the core of legal thought and activity in this new century.” The academic jargon is instructive: “Transnationalism” is, in the words of radical State Department counsel Harold Koh, the idea that “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” Another key supporter of transnationalism goes so far as to argue that “international law is supreme over domestic law.”

  • Diane Vacca May 30, 2010 at 7:19 pm

    Susan, how do you know Kagan prefers international law over the Constitution? Please let me know where you read or heard that.

  • Susan May 30, 2010 at 6:17 pm

    It is not Ms. Kagan’s sexual preference (who really cares about that) or lack of judicial experience that is truly at the heart of what scares me. It is her preference of international law over the Constitution. We have an amazing founding document and if we adhere to its tenets, we will have an amazing, strong, and (above all) FREE country.

  • Diane Vacca May 15, 2010 at 1:40 pm

    I’d like to expand on my remarks about whether Kagan’s sexual preference is a legitimate subject of inquiry. Identity or membership in a particular group should not be part of a justice’s job description. I do believe, however, that certain people, such as women and African-Americans, bring a different sensibility to the bench as a result of having experienced discrimination under the law. Since gays have also been deprived by law of some of the rights enjoyed by the majority, it follows that an openly gay justice could increase the understanding of the Court.

    What would happen if a closeted gay person came out after being confirmed? Wouldn’t there be a sense of outrage that someone appointed to such an exalted position had been less than honest with the country?

  • drpatallen May 14, 2010 at 8:09 am

    I fear that our country has become mired in the mud that has been flung about by political pundits who make their enormous salaries by being vicious and destructive. They do not elevate political discourse to the intellectual and philosophical realm. Nor do they offer practical solutions. They remain problem focused, because that brings in ratings and advertising dollars.
    Mitch McConnell, whom I met just once in the 70’s in Louisville, Kentucky was always a man on the make. He has turned out to be the most unattractive man both physically and politically that I feared he would at that only visit I had with him. He won’t remember me, but I have never forgotten him. He uses his role in the Senate to speak in an ugly and demeaning way whenever possible; no surprise that he attacks Kagin in this way.

    This country can not recover from our economic disasters or move forward to an inclusive community of educated and civic minded citizens as long as we support men like McConnell and pundits from the right and left who exist to profit from bombast and empty rhetoric.

    The current fight over the next member of the Supreme Court is about more than whether Kagin has ever served as a judge. It is about inuendo, gender, and punishing a woman who has devoted her life to professional achievement at the highest level. Men fear this. Make no mistake about it. And, as the economy continues to be rocky, the fight over women and every job that is available will just get worse.