Elena Kagan is a poor choice for the United States Supreme Court, and she should not be confirmed. Supreme Court nominees must possess certain qualities - intelligence, character, temperament, judicial or other significant legal experience, and a judicial philosophy that demonstrates an understanding of the proper role of the judge. These qualities are indispensable and Ms. Kagan fails to meet the two most important - legal experience and judicial philosophy.
Ms. Kagan’s degrees from Princeton, Oxford and Harvard demonstrate requisite intelligence; no one suggests she lacks the necessary character or temperament. She is, however, the least experienced Supreme Court nominee in modern history. She has never been a judge. In fact, she is the first nominee in almost 40 years - since William Rehnquist - without judicial experience. Previous judicial experience is not indispensable - Justices Louis Brandeis and Felix Frankfurter had none - but substantial legal experience is. Ms. Kagan also has only two years of real-world legal practice, and that as a low-level associate. Most of her legal background consists of service in the rarified halls of academia and within the Clinton White House. Her meager scholarly writings have been described by one analyst as “lifeless, dull and eminently forgettable.”
Ms. Kagan is best known as the former Dean of Harvard Law School where she earned plaudits for hiring a few moderately conservative law professors and welcoming reasoned debate. Only in the elite academic world would this seem remarkable. More revealing about her deanship is that she banned military recruiters from Harvard Law School at a time when our soldiers were risking their lives to defend us. As Ed Whelan, president of the Ethics and Public Policy Center, astutely noted, she “elevated her own ideological commitment on gay rights above what Congress … determined best served the interest of national security.”
Her one year of service as solicitor general, a political appointment from President Obama, has hardly been distinguished. In fact, Chief Justice John Roberts, writing for an 8-1 majority in a recent case, referred to the First Amendment proposition advanced by the government as both “startling and dangerous.”
The critical legal issue of our time is the proper role of a justice in interpreting the Constitution. She should decide cases based upon the text and original understanding of the Constitution, not on her personal views of what is just or fair. Because Ms. Kagan’s paper trail is so thin, it is difficult to ascertain precisely what her view is on the proper role of a judge. The little that is known suggests that she is likely to substitute her views for those of the Founders. In a law review article, she sympathized with the view that the Supreme Court should look out for the “despised and disadvantaged.” To be sure, the “despised and disadvantaged” as well as the “little guy” should win, but only when the law is in their favor. So, too, should large corporations win, when the law is on their side. This is what it means to have a rule of law. The rule of law is one of the great contributions of Western Civilization and to follow it faithfully is the obligation of every judge. Ms. Kagan’s apparent failure to recognize this raises serious doubts about her philosophical underpinnings, and this, coupled with her scant legal experience, provides ample grounds to reject her nomination.
By all accounts, Ms. Kagan is a pleasant person. Having once lunched with her at a law school deans gathering shortly after her appointment as Harvard’s dean, I can attest to the fact that she is not only a very nice person, but a wonderful conversationalist. These are not reasons, however, for supporting her confirmation. Some conservatives argue that she is the best we can expect from the Obama administration. Perhaps so, but the assertion that he could have done a lot worse is hardly a worthy standard to be applied for the nomination and confirmation of a Supreme Court justice.
Bernard Dobranski is dean emeritus and professor of law at Ave Maria School of Law in Naples, Fla.