President Obama has been derided as the “professor-in-chief” who approaches the duties of the Oval Office from the perspective of a legal theoretician rather than a savvy diplomat or political strategist. Yet the erudite scholar has bucked the tradition of selecting Supreme Court justices from among the ranks of sitting federal judges and plucked a nominee almost directly from behind the law school lectern. Whether cunning calculation or an irrepressible prejudice in favor of tassels, Mr. Obama’s novel approach will fuel a novel confirmation debate.
Absent unexpected revelations of past indecencies or outrageous statements not yet come to light, a key theme to dominate Elena Kagan’s nomination hearing will be her lack of experience. Ms. Kagan’s scant practice of law is overshadowed only by her never having donned the black robes and taken up the gavel of a judge. The lion’s share of her career has been spent in the halls of academia, first as a professor and then as the dean of Harvard Law School.
The “inexperience” line of questioning will provide a bit of noise initially, rankling anti-ivory-tower conservatives and setting the battlefield for worthier criticisms, but it is unlikely by itself to deliver a felling blow to the nominee. After all, the five justices disliked by conservatives and the four justices disliked by liberals were all federal judges in their prior lives. Just as most conservatives would rather be governed by the first 100 people in the Boston phone book than the political science faculty at Harvard University, they also would rather be judged by pretty much anyone but most life-tenured federal judges.
Yet, the law faculty of Harvard University wouldn’t likely be their second choice. In fact, Harvard Law School might be the only place worse than the federal bench.
This is the secondary prong of the inexperience theme Republicans will sound if they are to gain traction on the issue. The mere fact of not being a judge isn’t damning - it even may be refreshing. But Harvard Law School is a breeding ground for the sort of anti-rule-of-law, progressive-activist judges most feared and despised by those who bemoan a runaway court trampling over the democratic process.
Ms. Kagan seems to have been preparing for a modern-day nomination hearing since elementary school. She has spoken nothing of consequence or controversy during her career, was granted tenure over objections that she had not sufficiently published, and can take cover for objectionable stances as solicitor general by remarking that she merely advocated on behalf of the president. She has no paper trail, no legacy of judicial opinions and no record of note by which to form a precise opinion of her judicial temperament.
She is a “stealth” candidate - a nominee with so little evidence of character, one way or the other, as to prove unimpeachable.
Every crumb will thus be scrutinized for clues as to the “real” Elena Kagan. And the most scrumptious crumbs certainly will involve her “hostility” to the military while governing Harvard Law. Ms. Kagan was at the forefront of the crusade to banish military recruiters from universities as a protest of the “don’t ask, don’t tell” policy. She frequently expressed her moral “abhorrence” of the “military’s policy,” refused to enforce a federal law requiring schools that receive federal grants to allow recruiters access to campus and eventually joined a legal brief to have the law overturned.
Never mind that “don’t ask, don’t tell” is a federal law (the military does not make laws) passed by the Clinton administration and a Democratic Congress (Ms. Kagan worked in the Clinton White House) and that Ms. Kagan continues to esteem highly many of the authors of that policy (reserving her “abhorrence” for young recruiters simply following orders). Rather, focus on her unlawful disobedience of a federal statute, her resort to the courts only as an afterthought and her ultimate decision to relent her tempest-in-a-teapot rebellion only when the Supreme Court (which she hopes to join) unanimously rejected her legal objection to the law in an 8-0 opinion.
Of course, at that time, she was a dean and not a judge. But she was the ultimate role model to her students, leading by example as the dean of a prestigious law school. Her blatant disregard for laws that she found personally displeasing and intellectual satisfaction with legal arguments dismissed by even the most sympathetic judges reflect poorly on the adequacy of her judicial temperament and capacity for unbiased rulings.
Justin Paulette is an attorney and writes for the Ashbrook Center’s No Left Turns blog. His forthcoming book is on the Supreme Court and constitutional interpretation.