Supreme Court Justice Elena Kagan?


That's the verdict from a long and persuasive post by SCOTUSblog's Tom Goldstein, who predicts that President Barack Obama's next Supreme Court pick will be Solicitor General Elena Kagan. Here's a snippet:

The President will want a highly qualified nominee, obviously.  Beyond that, the calculation for the White House will be almost entirely political.  Rahm Emanuel will have overriding control – if not minute-by-minute involvement – just as he did with Justice Sotomayor.  And as with that previous confirmation, the calculus will be one of the political costs and benefits of the highly qualified candidates at the political moment in time.

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration's view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn't actually that there is a realistic chance that a Supreme Court nominee would be filibustered:  there are several liberal candidates whom conservative Democrats and the Republican Senators from Maine might or might not ultimately support, but they would not filibuster.  Supreme Court nominees require just fifty votes for confirmation, and with a committed effort, the Administration could get a relatively wide range of candidates through….

Nothing I have written above fails to scream – not merely suggest, but scream – Elena Kagan, who deserves the title "prohibitive front runner."  Super-smart and genuinely knowledgeable.  Solicitor General.  Formerly the tremendously successful Dean of Harvard Law School.  Personally has the greatest respect of the President, in part from their shared ties to both Chicago and Harvard.  Deep relationships in the Administration, particularly among those who served under Clinton.  Well-known conservatives lined up around the block to support her in emphatic terms.  Young!  Female!  Has an exceptional ability to sound extremely articulate and thoughtful without saying anything that could cause offense.  No material track record on anything.

Read the whole thing here.

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  1. Has an exceptional ability to sound extremely articulate and thoughtful…

    A certain boy wonder in the White House had an exceptional ability to sound extremely articulate as well, but you can see what that got us.

  2. No material track record on anything.

    Is this supposed to be a good thing or a bad thing?

    1. Not sure, but sounds like a perfect match for Obama.

  3. No material track record on anything.

    But once she has been confirmed, we’ll absolutely love her!

    Am I right?

  4. What? You can’t find a picture of Kagan?

  5. How would this be possible?

    Keith Olberman assured me after the Citizens United decision that the Corporations will now be nominating SC justices.

  6. So Obama might nominate the daughter of Eleanor Smeal?

  7. I hope she’s Obama’s David Souter.

  8. I’ve always had the sneaking suspicion that she’s a lesbian. (NTTAWT) If so, I would expect her nomination to produce some interesting hearings.

    It’s also significant that she’s never been a judge. Am I right in thinking that Abe Fortas was the last Supreme Court justice with no prior experience as a judge?

  9. William Rehnquist, i believe, was never a judge prior to Nixon putting him on the Supreme Court.

  10. Are any of the justices planning on retiring any time soon? I guess Ginsburg is still pretty sick…

    I’m surprised this hasn’t gotten any more attention; I can hardly think of anything scarier than BHO naming two life-long supreme court justices.

  11. Goldstein’s correct that HLS profs, including those regarded as “conservative” (or what passes as that at leftist HLS), strongly supported Kagan for Solicitor General. But consider:

    1. There’s currently some anger, it seems deserved, at HLS about Kagan leaving the place in shambles. Due to the combined effect of her authoritarian personality and her risk-taking (possibly manic?) propensity, after raising a few hundred million dollars (admittedly an amazing feat), much of it earmarked for the new building, a couple years ago Dean Kagan apparently pretty much unilaterally decided to put the money in the endowment. Rather than put the money which would shortly need to be paid out for the building in safe, short-term instruments, she did the equivalent of taking it to Vegas. When the endowment tanked, something like a third of the money raised was lost ? maybe more than $100 million. In other words, she raised big money, and budgeted and planned based on that money, and then gambled a bunch of it away. As a result of Kagan’s imprudent risk-taking and gambling with alumni donations, there have been massive staff layoffs and other cuts at the Law School, and the Law School had to take out a massive mortgage on the new building. As people have pushed for an explanation as to how the Law School could be so cash-strapped after recently raising so much money, administrators have tried to keep tight wraps on the specifics, but that’s what I’ve heard through the grapevine, and surely this subject would be poked into by Republican Senators if Kagan were nominated to the Court, given that Kagan’s record at Harvard Law School (which was clearly good in many respects) would be a key component of the case for her nomination.

    2. Even when Kagan’s nomination for Solicitor General was pending I saw commentary on the web about her injudicious interpersonal style. E.g., as dean she was notorious for her verbal abuse of underlings (screaming, profanity, even kicking on the doors of people she was screaming at) and the massive turnover of people she worked for who couldn’t take it or refused to take it. She apparently has a blue-collar background (e.g., former chain-smoker), and apparently she grew up around that sort of thing (thus making her swift rise in the legal profession all the more remarkable). While Kagan was still dean, and going through SG confirmation proceedings, people with knowledge of her injudicious temperment were likely not in a position to talk, but I would think that if Kagan is nominated to the Court and there’s a widescale FBI investigation, many people will relate stories of her abusive treatment of employees, it will be in the raw report, and then will be leaked to the press. Another illustration of Kagan’s poor judgment: I understand that while dean she personally took part in a student-run parody show which involved viscious attacks on unpopular students. If that’s correct, I wonder why we need such a person on the Supreme Court.

    3. Nominating Kagan would open up a can of worms I doubt Obama wants to open: there’s loads of detail available on the web about how a few years ago Kagan covered up a ghostwriting/plagiarism scandal involving her mentor, Larry Tribe (just google “Kagan Tribe ghostwriting”), who was also a mentor of Obama, who apparently was a Tribe ghostwriter when he was a student. Is it really so important for Obama to get Kagan on the Court that he’d want to risk a Senate investigation into whether she helped cover up a scandal involving a liberal legend who’s despised by many conservatives?

    4. Even if Kagan didn’t do anything wrong in handling the Tribe investigation, just the mention of Tribe would be politically controversial. Conservatives have long detested the idea of Tribe or anyone remotely like him being nominated to the Supreme Court. Given that, why in the world would a president who’s a former Tribe ghostwriter want to appoint to the Court another former Tribe ghostwriter? Wouldn’t that virtually invite conservatives to focus part of the hearing on lightning-rod Larry Tribe? (That has a nifty ring, “Lightning-Rod Larry.”) I personally don’t think Kagan would be a super-liberal justice (I think she’d be a lot more like Breyer than, say, Brennan or Marshall). But her close connection to Tribe, and her lack of any real paper trail (no judicial experience and limited publications), could reasonably be used by opponents to paint her as a radical liberal. If Obama wants a fight, he should go for a clear, proven liberal, not someone who’s probably relatively moderate but who given her close connection to Tribe would nonetheless be painted as a covert super-liberal without a paper trial who Obama’s trying to sneak into a Supreme Court seat.

    With all due deference to Tom Goldstein’s experience and sense of the politics involved, I trust and expect that Obama will do better than a Justice Kagan.

  12. ——————–Our U S Supreme Court is Corrupt!

    Most of the present Justices of our U S Supreme Court are addicted to ‘religion’!
    Thus, they are under the influence of a “mythological entity”; and totally unable to
    rule fairly in any case that involves conflict with the tenets, teachings, edicts or
    prejudices associated with their “religious-dogma”!
    Further; their renunciation of rational, and critical thinking, in favor of reliance on a
    “Ghostly-Apparition” for guidance; deprives them of the the necessary reasoning
    powers required for fair and impartial judgement of all issues that are antithetical
    to theirs.
    Our U S Constitution’s First Amendment’s “no law respecting—religion” dictates
    or, implies a ‘total’ separation of “Church & State”!
    Therefore, rightfully; no Case before the “U S Supreme Court” should be tainted’
    by influences of people who live in a ‘fairytale world’ governed by a “Religion”!
    ——————Most everyone “interprets” the U S Constitution!
    But; U S Supreme Court Justices are ‘exactly’ ‘selected’ because of their ‘known’ personal
    views that coincide with those who want ‘their’ personal ‘interpretation’ of the ‘Constitution’
    adhered to like a ‘leech’ on a bloody body part!
    Literate ‘rational’ people use their minds to understand every word and it’s meaning to them
    personally; and, that includes all parts of the U S Constitution!
    It is about constraints and influences and ‘degrees’ of freedom, and the inalienable ‘rights’
    of all, including many who had few or no ‘rights’ when that Great Document was enacted!
    So! Despite what many believe; our U S Constitution has ‘proved’ to be a “Living Document”,
    the meaning of which is subject to contemporary “interpretation”!
    Unfortunately, the “religious right” represents the majority’s ‘bent’ of the present Justices of
    the U S Supreme Court!
    And, their collective ‘biased’ points of view determine the outcome of 99% of all cases
    before the U S Supreme court!

    ———————–An American tragedy!

  13. Solicitor
    a href=”http://www.solicitorservice.co.uk”>Solicitor

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