Wisconsin Democratic Sen. Herb Kohl was only half right in an observation he offered during opening statements in the confirmation hearing of President Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court. Said Kohl: “We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us.”
There is indeed less concrete evidence on the document side of the ledger, for the simple reason she’s never been a judge and has little experience as a practicing attorney. But contrary to the Wisconsin senator’s statement, Kagan’s judicial philosophy is anything but a mystery. Her preparation for this nomination consists almost entirely of her tenure as a clerk to Justice Thurgood Marshall and as a political appointee serving President Bill Clinton. There is a great deal in Kagan’s work during those years that relates directly to how she would approach serving on the nation’s highest court.
For example, the Court issued a significant Second Amendment decision Monday in McDonald versus City of Chicago, affirming that the Constitution’s guarantee of the right of all citizens to keep and bear arms applies to state and local governments. Chicago’s extremely restrictive gun-control law thus failed to pass constitutional muster. McDonald follows close on the heels of the Court’s landmark 2008 Heller decision declaring the District of Columbia’s equally restrictive anti-gun law to be unconstitutional. The Court has thus taken some major steps towards re-establishing the right of all U.S. citizens to own firearms to protect themselves, their families and their properties.
But as Sen. John Cornyn, R-Texas, pointed out before this week’s hearing was gaveled to order, Kagan almost certainly would have dissented against both Heller and McDonald. During her Marshall clerkship, Kagan wrote in a memorandum to the justice that she was “not sympathetic” to a case challenging the D.C. gun-control law on grounds quite similar to those cited later in Heller.
Similarly, during the Clinton years, Kagan compared the NRA with the KKK, calling them “bad guy orgs.” Justice Clarence Thomas likely can offer Kagan some useful advice on why the right to own firearms is never more critical than when KKKers are planting burning crosses in a black family’s front yard. Since the Court ruled Monday that state and local governments must respect Second Amendment rights, there will be multiple cases reaching the nine justices in future years. This is only one issue, but it is instructive in correcting the notion that President Barack Obama has nominated a justice tabula rasa in Elena Kagan.