Last night when I first heard Solicitor General Solicitor General Elena Kagen was nominated for the Supreme Court, my first reaction was she was perhaps the most unqualified pick for the court in a very long time. Rather than write that up, I decided to sleep on it, which was the prudent idea.
In graduate school, the professor who taught advertising had barely been out of a classroom, after my entry into the real world of advertising, I learned that almost everything she taught us was wrong. She understood the text book but couldn’t comprehend the real world. Elena Kagan is like that professor.
With a clear head I can honestly say that Elena Kagen is perhaps the most unqualified pick for the court in my life time. She has never been a judge, she has very little real legal experience outside of a classroom, and she has a limited record of legal scholarship.
On the positive side she has a reputation of being a “friend” to many people who do not share her political opinions, but as the NY Times reported today, she has a reputation of being a bit of a bully:
“While she was respected inside the Clinton White House for her smarts (she would often bat around constitutional law questions with the president), one Clinton colleague, Jamie Gorelick, told The New York Sun in 2006 that Ms. Kagan was seen by some as brusque and overly demanding. She sometimes rubbed people in the Justice Department the wrong way.
‘She was extremely aggressive when she was in the White House in trying to carry out the president’s agenda,’ Ms. Gorelick, a former deputy attorney general and a fan of Ms. Kagan, was quoted as saying. ‘She was not the most popular person there in part because of that.’”
For President Obama she is the perfect pick, he is not able to expend much political capital on the pick and her lack of a scholarly track record, or record as a Judge means she should pass easily.
One of the few times she had to make a stand Kagan “punted” which may be an indication of her background as a “political” player rather than a judicial one:
An article in today’s New York Times—“Potential Court Pick Faced Dilemma at Harvard”—tries to paint former Harvard law school dean Elena Kagan as a “pragmatist” for railing vehemently against the Don’t Ask, Don’t Tell law while being careful not to jeopardize the flow of hundreds of millions of dollars of federal funds to Harvard. I think that it’s far clearer that she was just engaging in cheap and contemptible moral posturing.If Kagan genuinely believed that the Don’t Ask, Don’t Tell law was “a profound wrong—a moral injustice of the first order,” why would she make herself complicit in implementing the grave evil? Yes, of course, it’s true, as the article points out, that “barring the recruiters would [have] come with a price.” But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, “We’ve already established what you are, ma’am. Now we’re just haggling over the price.” (My point isn’t that Kagan deserves the Bernard Shaw slam—she doesn’t—but rather that she evidently doesn’t believe her own rhetoric.)
Despite her reputation as a bully, when push comes to shove she has also been known to build consensus, that will be her role on the Supreme Court, to figure out how to bring Justice Kennedy to the Liberal side of 5-4 votes.
Is Elana Kagan qualified to be on the Supreme Court? It depends. If you are looking for someone with strong credentials to sit on the court, she is not the most qualified pick that President Obama could have made. But she is perfect for what the president wants, she has a sparse track record to trip her up during confirmation hearings, but she has the potential of being not just one more liberal vote, but one and a half, if she can influence Justice Kennedy.