The nomination of Elena Kagan has stoked the usual buzz about how her views might tilt U.S. Supreme Court rulings. Lawrence Solum, a constitutional law expert who closely follows the high court, says only time will tell and that, if confirmed, her ultimate legacy might surprise even Kagan herself. Solum, a professor of law and philosophy, examines Kagan's nomination in an interview with News Bureau Business & Law Editor Jan Dennis.
What is your impression of Elena Kagan as a potential Supreme Court justice?
Elena Kagan is a brilliant lawyer, with broad experience in both law and policymaking. She is serving now as the solicitor general of the United States, and in that role she is the chief advocate for the federal government in the Supreme Court. In some ways, that job is the best preparation for the job of justice. Before that, Kagan was an extraordinarily successful dean of the Harvard Law School, where she played a key role in reconciling opposing factions and dramatically improved the faculty. She also served in important policymaking and legal roles in the Clinton administration, giving her insight into separation of powers issues that have been missing from the court for many, many years.
But Kagan's record is difficult to decipher. With one exception, she has avoided taking controversial stands on any of the major legal issues of the day. The exception is the stand she took against allowing the military to recruit at Harvard Law School because the "don't ask, don't tell" policy violated the law school's anti-discrimination rules. Her legal scholarship on the First Amendment and on the role of the president in regulatory policy is both smart and learned, but it doesn't tell us very much about her core values or the way she would perform on the court.
One aspect of Kagan's record that may be very important has received very little attention in the media. One of Kagan's academic subjects was civil procedure - the course that introduces law students to the inner workings of the system for resolving disputes between private parties. The current lineup on the Supreme Court is notable for its lack of expertise on this subject, which is incredibly important, but somewhat arcane.
Frankly, I don't know what kind of justice Elena Kagan would become. I'm not sure that anyone knows, not even Kagan herself. When retiring Justice John Paul Stevens was appointed, he was a moderate conservative, and we now forget that on many occasions he provided the fifth vote for decisions that moved the law towards moderate and conservative positions. But when Justice Stevens announced his retirement, he was perceived as the most liberal member of the court. Elena Kagan shows all the signs of someone who has deliberately avoided controversy in order to preserve the possibility of being appointed to high office. As a Supreme Court justice, she would have life tenure. At some point, the "real" Elena Kagan would begin to emerge: "Justice Kagan" might be the moderate progressive we expect, or she might be a real surprise.
Considering her background, what might work in her favor when the Senate votes on her nomination and what might work against her?
The bottom line is that Kagan is clearly qualified, and nothing in her record - as we know it so far - is likely pose a serious obstacle to her confirmation. Of course, that does not mean that the confirmation process will all be smooth sailing. Confirmation hearings have become a highly ritualized form of Kabuki theater. Republican senators will raise questions about Kagan's lack of judicial experience, her stand on military recruiting at Harvard, and will press her to commit herself against judicial activism and for the rule of law. Progressives will criticize Kagan for her failure to take strong public stances for Roe v. Wade, against military tribunals, and for activist judging in the service of a progressive political agenda. But in the end - barring any unexpected revelations - she will be confirmed. The smart money suggests that she will receive between 60 and 65 votes.
If confirmed, how might she reshape the court and what issues would be most likely to see a shift in opinion?
No one knows the answer to that question, although you will read many confident predictions between now and the ultimate confirmation vote on the floor of the Senate this summer. We do know that Justice Stevens was a reliable vote for the liberal or progressive wing of the court on "hot button" issues. Political scientists have developed techniques for measuring the political ideology of the justices, and on these measures, Justice Stevens is the most liberal member of the current court. Nothing in Elena Kagan's record suggests that she would be to the left of Justice Stevens. This means that her appointment seems likely to move the court very marginally to the right. On the hot button issues, Justice Kennedy is currently the swing vote. His vote decided Lawrence v. Texas, the case the invalidated laws against same-sex sexual activity. And Kennedy's vote also decided the Citizen's United case, invalidating federal regulation of corporate speech in political campaigns. Because Kagan seems likely to vote the same way as Stevens (and to the left of Justice Kennedy) in such cases, most students of the court would predict that her appointment is unlikely to have any significant effect on the great constitutional issues of the day.
But Kagan's appointment might have more subtle effects. She is an expert in administrative law and civil procedure. The procedures that govern the courts and regulatory agencies are in many ways more important to the lives of most Americans than the cases that receive the most attention from the media. It is possible that Elena Kagan would be a major player on the court, introducing new ideas and shaping doctrines with subtle but pervasive effects.
The truth is that Kagan's impact on the court is highly uncertain. If we have learned anything from the recent history of appointments to the Supreme Court, it is that their effects are unpredictable. Justices Powell, Souter and Stevens all started as conservatives, but ended their tenure on the court as liberals. Elena Kagan could end her tenure as a firebrand for left-wing causes or as a moderate conservative. If she served until the age of 90 (as Justice Stevens has), she would be on the court in 2050 and her replacement could be someone who is not yet in junior high. Who would that Elena Kagan be? No one has a clue.