Bench Memos

Will the Left Oppose Elena Kagan?

If (as I expect) there is a Supreme Court vacancy soon, one big question that will affect the political dynamic over the White House’s selection of a nominee is whether the Left will mount vigorous and effective opposition to the possible nomination of Solicitor General Elena Kagan.  It is a remarkable testament to the perceived political impotence of the Left that everyone seems to take for granted that the answer to that question is no. 

Let me make clear at the outset that the question I am posing is not whether the Left would oppose confirmation of Kagan after she has been nominated.  It is instead whether the Left would exert any sway in stopping Kagan from being nominated in the first place.

Let’s briefly review some of the reasons why the Left would not be happy with a Kagan nomination.  (These do not add up to compelling reasons why conservatives should be happy with a Kagan nomination, but that’s a matter for another post.)

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation.  Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative. 

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.”  (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left.  For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.”  (See more examples in this previous post of mine.) 

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United 

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration.  Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval).  She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue.  In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand.  Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

With 59 Democrats in the Senate, it’s a safe operating assumption that virtually anyone President Obama nominates to the Supreme Court will be confirmed.  That makes it all the more striking that the Left shows no signs of willingness to fight for one of its favored candidates to be nominated.