Justice Elena Kagan

Our view: President Obama's second Supreme Court nominee will be a moderating influence who could help the justices bridge an increasingly bitter ideological divide

August 08, 2010

With her confirmation by the Senate as a U.S. Supreme Court justice, Elena Kagan becomes only the fourth woman ever to serve on the nation's highest court. At 50, the former Harvard Law School dean and Obama administration solicitor general can look forward to decades on the bench, where we hope she'll be a moderating force on a court that, like the Senate that confirmed her 63-to-37, has become increasingly polarized in recent decades.

Justice Kagan's swearing-in Saturday marks the first time that three female justices will sit on the court concurrently, and she brings impeccable credentials and a wealth of experience to the job, though she has never served as a judge. That supposed lacuna in her resume was seized on by some conservative critics, who argued there was no way of knowing how she might rule on specific issues since, aside from various writings and speeches over the years, she lacked an extensive judicial record.

But the court has a long history of nominees without prior judicial experience at the time of their confirmation who nevertheless went on to become distinguished jurists, and we expect Justice Kagan to continue in that tradition.

Predicting how justices will rule in future cases is, in any event, an inexact science at best. Retired Justice John Paul Stevens, the Republican nominee whom Justice Kagan is replacing, began his career as a moderate conservative but eventually became one of the court's most liberal members and a leader of its progressive minority (although he liked to maintain that it was the court, and not he, that had changed).

By the same token, the current chief justice, John G. Roberts Jr., also a Republican nominee, portrayed himself during confirmation hearings as a moderate conservative whose judicial role was, like a baseball umpire, merely to call "balls and strikes" as impartially as possible. Yet he went on to lead the court's conservative majority toward compiling one of the most stunning records of judicial activism in recent memory.

In one respect, Justice Kagan did take a leaf from Chief Justice Roberts' playbook during her own confirmation hearings: Rather than expound on broad issues of constitutional interpretation and judicial philosophy, she kept her remarks narrowly focused on judges' solemn obligation to defer to Congress' legislative role and to respect legal precedent and "settled law."

Justice Kagan held to this line of argument so consistently that at times she almost seemed coy. Yet her carefully crafted responses to senators' questions clearly were calculated to give her opponents as little ammunition as possible, and by the time the hearings were over, even her critics had to grudgingly concede that the strategy had worked. That she managed to win the votes of five moderate Republican senators in a bitterly divided Congress suggests she was successful in avoiding the liberal activist label.

The corollary to Justice Kagan's prudent reserve during the hearings, of course, is that her liberal supporters have been left as much in the dark as to exactly what she will do on the bench as her conservative detractors. And in the end, that is probably a good thing.

Why? Because everyone who comes before the court is entitled to a presumption that the justices will keep an open mind in order to give their case a fair hearing, and that issues of vital importance haven't already been decided before their case is even argued.

That is the implicit promise our legal system makes to every citizen, and it is basic to our democratic system of justice. Given the first-rate legal mind and unflappable judicial temperament Justice Kagan displayed during her confirmation hearings, we are confident the court's newest justice understands that, and will act accordingly.

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