It appears to be official that Elena Kagan is the choice to replace John Paul Stevens on the Supreme Court. Progressives are pretty uniformly underwhelmed. The consensus is that she’s an unknown quantity. Scott Lemieux writes that Kagan has “no judicial experience, very limited political experience, and no record of influential scholarship.” Glenn Greenwald writes, “Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”
On the other hand, James Doty writes that Kagan has spent her career working with or for liberals (clerking for Thurgood Marshall, for example, whom Kagan has called her “legal hero.”). Doty presents an argument that Kagan reliably will vote with the Court’s liberals on most issues.
While I share the opinion that President Obama could have seized the opportunity to appoint someone with a clearly liberal record, I’m withholding judgment on Kagan. The fact is, today’s liberals would have fought tooth and nail to keep John Paul Stevens off the Court, because his record as a judge in the federal court of appeals was moderately conservative.
And let us not forget that Earl Warren, who arguably pushed the court into being as liberal as it ever was, had been one of the primary movers behind the internment of Japanese Americans in World War II.
So, having read some background on Kagan, I can’t say I have a strong opinion one way or another. There’s no way to predict how she will vote.
Update: This comes under the heading of “Why African Americans vote for Democrats.” The Hill reports that the RNC is using a 1987 speech by Thurgood Marshall to slam Kagan. As explained above, Kagan was once Marshall’s clerk and also has praised him as her “legal hero.”
In the speech, Marshall — referring primarily to the infamous “three-fifths” clause — said the Constitution as originally conceived and drafted was “defective.” So now the RNC is circulating talking points that taunt Kagan — â€œDoes Kagan Still View Constitution â€˜As Originally Drafted And Conceivedâ€™ As â€˜Defectiveâ€™?â€
I infer from this that today’s Republican Party wants to restore the three-fifths clause, since they don’t think the clause was defective. It ain’t the Party of Lincoln any more, is it?