Reading US Supreme Court nominee’s tea leaves 

Elena Kagan, President Barack Obama’s second nominee to the U.S. Supreme Court, would be the first justice to join the nation’s highest judicial body without prior experience as a judge since William Rehnquist in 1972. Her record as a litigator is essentially limited to the past 14 months, serving as the nation’s solicitor general. And her record of scholarship, while impressive, is rather narrow.

So what are we to make of the president’s choice?

The Constitution spells out essentially no standards for service on the Supreme Court, and it’s hardly unprecedented for such appointments to be relatively inexperienced and young (Kagan is 50). But Kagan’s scant paper trail makes it tricky to assess how she’ll rule on the court.

In trying to read the tea leaves, defenders and detractors alike have looked to her recent service as dean of the Harvard Law School, where, notably, Kagan recruited a few solid conservatives to the school’s faculty.

Obama pointed to just this hiring record in his remarks announcing Kagan’s nomination, and her proponents argue that her ability to deal amicably with conservatives will result in expanded influence on the court. Conversely, critics on the far left worry that Kagan’s Harvard hiring decisions portend hidden but dangerous rightist tendencies.

I’d guess that these hopes and fears are both misguided, since the job of being a dean has very little to do with the job of judging. Some 20 years before Kagan worked to resuscitate the law school at Harvard, Guido Calabresi did the same at my alma mater, Yale, where as dean he recruited conservative scholars like Bob Ellickson, John Langbein and Alan Schwartz.

Notwithstanding that record, once Calabresi was nominated by President Bill Clinton to the 2nd U.S. Circuit Court of Appeals, he fell in comfortably with that court’s left flank. And his chumminess with right-leaning faculty and students as dean hardly translated into sway over his judicial brethren, as evidenced by his colleagues’ rather frequent decisions to reverse his opinions by a full en banc court.

It’s very likely that Kagan will follow a similar path. But when it comes to hot-button issues like abortion, affirmative action, sexual orientation and the environment, Kagan is likely to come down just where we’d expect, given her upbringing on Manhattan’s Upper West Side, her Ivy League education and her service to politicians Michael Dukakis, Clinton and Obama.

Likewise, don’t expect Kagan to hold magical sway over the justices to her right. In her first argument before the Supreme Court — last year’s Citizens United campaign-finance case — she bungled out of the gate, earning immediate and sharp rebukes from justices Antonin Scalia and Anthony Kennedy. (Kagan had, like Obama in his State of the Union speech, misleadingly conflated corporate campaign contribution limits with independent expenditures conveying political ideas.)

In the end, though, we won’t know much about Kagan-as-justice until she sits on the high court. Senators will doubtless grill her in the forthcoming confirmation hearings — and they should — but such televised spectacles are more about political posturing than eliciting meaningful information about nominees.

Hopefully, at least, the process can help to educate the public about the proper role of judges, and undo some of the president’s harmful mischaracterizations of the aforementioned Citizens United ruling. But barring a shocking revelation, I’d expect Elena Kagan to be confirmed.

James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.

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Staff Report

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