In a guest post at the Legal History Blog, Harvard law professor Mark Tushnet draws some interesting parallels between President Franklin Roosevelt's Supreme Court strategy during the New Deal and President Barack Obama's recent selection of Elena Kagan:
The basic story is simple. Roosevelt was looking for justices who would uphold the New Deal's major initiatives or, more generally, who held expansive views of the scope of the national government's powers under Article I. He was relatively indifferent to his nominees' views on issues of civil rights and civil liberties, as his nominations of Reed and, later, James Byrnes show….
I mentioned Elena Kagan in this post because my sense—based on no inside information, of course—is that her selection reflects a strategic calculation by President Obama similar to FDR's. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors, and is relatively indifferent to his nominees' views on other questions. Put pretty crudely, SG Kagan hasn't been vetted for her views on what we might call "Warren Court" (or "Brennan-Marshall") issues (other than the scope of national power)—which may be why some on the liberal-left side of the spectrum are nervous about what she would do as a Justice dealing with those issues.