What Kagan says about Obama

Our view: We have much yet to learn about the president's latest nominee for the Supreme Court, but his introduction of Elena Kagan says a lot about his political style

(Susan Walsh, Associated…)
May 10, 2010

President Barack Obama this morning nominated for a seat on the Supreme Court a woman who is well known in Washington and in legal circles from her years serving in key public posts in two presidential administrations, and as dean of one of the nation's most prominent law schools. We know that she is well liked and has been able in academic and political contexts to forge consensus across ideological lines. But as for the issues that suck up the attention in Supreme Court nominations — abortion, affirmative action, the separation of church and state, etc. — we know next to nothing about where she stands.

Ms. Kagan, who currently serves as solicitor general, is the first nominee for the Supreme Court in decades to never have served on the bench; in fact, before she took her current job, she had never even argued a case in front of a judge. In the grand history of the Supreme Court, this is not unusual, and a case can be made that having someone with at least a slightly different background from the other justices is a positive thing. From President Obama's perspective, it is perhaps ideal, as it gives potential opponents of her confirmation little solid to chew on — there will be no repeat of the grilling Justice Sonia Sotomayor got over her opinion in a New Haven affirmative action case that was overturned by her future colleagues as she awaited confirmation.

But from the perspective of the public, which has a right to know the workings of a mind that could spend decades on the highest court, the lack of a paper trail indicates the need for real and substantive confirmation hearings for Ms. Kagan. Although several Republican senators voted to confirm her for her current post, they, quite rightly, issued statements shortly after her nomination saying appointment to a political post and appointment to a lifetime seat on the Supreme Court are different things and require different levels of scrutiny.

If they, or Democrats who might be concerned about her bona fides on the left, actually intended to use the confirmation hearings as an opportunity for a real conversation about the law instead of a means to score points in an election season, that would be a wonderful thing — but don't hold your breath. Senators are apt to spend a lot more time talking than asking questions (expect plenty of posturing about Ms. Kagan's defense, while dean, of Harvard's stance forbidding military recruiters on campus because the "don't ask, don't tell" rule violated the university's nondiscrimination policy). And Ms. Kagan is sure to follow the well-worn groove of her predecessors in Senate confirmation hearings of pledging a fealty for precedent and a distaste for judicial activism.

In truth, today's announcement probably revealed more about President Obama than it did about Ms. Kagan. In addition to the standard recounting of the nominee's background and accomplishments, the president made mention of only one legal issue that Ms. Kagan had worked on, and it happened to be the very one that Mr. Obama has publicly feuded with the Roberts court about. The president noted that the first case Ms. Kagan took up as solicitor general was the government's side in Citizens United vs. Federal Election Commission, the campaign-finance lawsuit in which the court's conservative majority threw out a century of precedent that had greatly restricted the presence of corporate money in politics. "I think it speaks to her commitment to defending our fundamental rights," Mr. Obama said, while praising Ms. Kagan's vision of the law not as "intellectual exercise but as something that affects people's lives."

This was a subtle but nonetheless pointed continuation of the back-and-forth that began with Mr. Obama's criticism of the court's decision in Citizens United during his State of the Union speech in January and which continued with Chief Justice John G. Roberts Jr.'s criticism of those remarks in a speech months later. The reference to the issue in the context of Ms. Kagan's nomination shows that the president isn't backing down but that he has chosen to continue the fight not with an iron fist but a velvet glove.

Rather than escalating the war of words, Mr. Obama is sending a nominee most famous for fostering productive relationships with those of differing points of view while in Washington and at Harvard. She is someone, the president said, who is in the habit of "understanding before disagreeing," that is, of seeking to win an argument on an opponent's terms rather than through ideological confrontation.

Mr. Obama was elected on a promise of moving Washington beyond the gridlock that has gripped it for nearly two decades, but that wasn't much on display amid the hyper-partisanship that accompanied the health care reform debate for most of the last year. If there is any conclusion that can be drawn so far from Ms. Kagan's nomination, it is that Mr. Obama hasn't given up on the idea that a new kind of politics can be more effective than the old ways of confrontation.

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