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Dalia Lithwick

Why the inscrutable Kagan makes everyone nervous

Now that Elena Kagan is officially the White House's Supreme Court nominee, pundits have launched themselves into their CSI-worthy project of sorting through tiny filaments of evidence for her true ideological views. With no judicial record to pore over, and some of the wonkiest law review articles ever penned to her credit, Kagan has mastered the fine art of nearly perfect ideological inscrutability.

Even New Yorker writer Jeffrey Toobin, her law school study partner, has virtually no idea what she really believes. That only makes us more determined to sift through the dry cleaning slips and the Post-it notes to try to guess at who the real Elena Kagan might be. And since she has been hard to know, we struggle to find someone else we might compare her to. Paul Campos, a law professor at the University of Colorado, has (fairly ridiculously) compared Kagan to Harriet Miers. Columnist Andrew Cohen has compared her to Chief Justice John Roberts.

So we've begun another round in the judicial confirmation game of "my trace DNA evidence is better than yours." A letter Kagan co-authored in 2005 condemning a court-stripping proposal for suspected terrorists at Guantanamo Bay will hearten the left. Her statement at her 2009 confirmation hearing for solicitor general that the president could detain enemy combatants without trial will make liberals very nervous. Kagan's refusal to find a right to same-sex-marriage in the Constitution may provide some small comfort to conservatives.

But the fact that she was strongly and vocally opposed to military recruitment at Harvard Law School until the courts forced her to rescind her policy suggests a willingness to fight for liberal causes. We will debate the ambiguous evidence of Kagan's views on executive power for weeks without knowing much of anything.

It's not quite that Kagan offers something for everybody. It's more that she offers nothing, so there is something for everybody to wail about.

What nobody disputes about Kagan is that she is terrifically intelligent, an able manager, ambitious, and well liked and that she was all that and a wheel of brie when it came to sorting out the problems she inherited as dean of Harvard Law School. She ran the most successful fundraising campaign in law school history and attracted important right-wing thinkers to campus. Nobody (beyond Glenn Beck) has ever accused Kagan of being a liberal firebrand or a wild-eyed idealist. A Kagan fan told NPR's Nina Totenberg this weekend that "Elena is the single most competitive and most inscrutable person I have ever known."

It's perfectly clear that Kagan brings the same qualities to the court that Obama prizes in politics generally: She has staked her professional career on reaching across the aisle and showing respect for all viewpoints. It's one of the reasons her greatest fans include two Republican former solicitors general, Ted Olson and Charles Fried. And that's why the interesting question is how serious the GOP effort to scuttle her nomination will be. Yes, they are already muttering about her inexperience. But ultimately, how do you wage war over a constitutional sphinx?

Obama's announcement of her nomination hammered home the two key prongs of the president's judicial vision: centrism and hating on the Roberts court. Kagan, noted Obama, is a proponent of bipartisanship, of "understanding before she disagrees" and of seeking "common ground." So far so good. But then the president tried to make her the face of opposition to the Citizens United decision, a decision so staggeringly unpopular that Obama has been campaigning against it since January.

It's a fine needle the president is trying to thread: positioning Kagan as a bipartisan consensus-builder who is also going to knock some sense into the right-wing corporate ideologues on the court.

It's not clear from her record whether Kagan will prove to be the Jurist for the Little Guy or the Judge Who Bridged the Partisan Divide. There is ample evidence in her professional and academic record that she has ably managed to do both at different times, depending on the professional position she held and whose views she was representing. We will hear a good many testimonials in the coming weeks that Kagan has the heart of a progressive lion and the political skills of a diplomat. What remains to be seen is whether she will put the former to service in the interest of the latter — or vice versa.

Dahlia Lithwick is a Slate senior editor.

Why the inscrutable Kagan makes everyone nervous 05/10/10 [Last modified: Monday, May 10, 2010 7:47pm]

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