A Further Perspective

A Shrewd Choice

Kagan would be an effective advocate on the Court.

By 5.14.10

President Obama's nomination of Elena Kagan to serve as the next Supreme Court Justice is no surprise to many. By most accounts, she is likely to be an effective advocate on the Court. For those in favor of the Court's steady erosion of the constraints on government power enshrined in our written Constitution, her nomination should be welcome. For those opposed, her nomination provides a call to arms to defend the principles of limited government.

While she would be only one of nine Justices, Kagan's capacity to influence the direction of the Court may be significant. As many have observed in recent days, she has a strong intellect -- an asset in attempting to influence colleagues on a Court that is noted for its intellectual firepower. In order to shape the direction of the Court, a Justice must possess the ability to craft arguments that are persuasive to the other members. Kagan appears to have the potential to excel in this area.

Kagan's experience in the Clinton White House and as a Dean of Harvard Law School are another advantage. In these positions, she honed political skills that facilitated her meteoric rise from law professor to Supreme Court nominee. As a result, even some prominent conservatives such as former Solicitors General Charles Fried, Ted Olson, and Ken Starr supported her nomination as Solicitor General. Again, these are skills that would likely magnify her presence on the Court.

Kagan's age is also significant. At 50, Kagan could expect to serve decades on the Court. With increased tenure comes the potential for increased influence. As with Justice Stevens, Kagan's stature on the Court would likely grow over time.

Finally, Kagan's limited paper trail provides an air of neutrality. Already, some on both the left and the right have attacked her as overly "conservative" or "liberal." While it is likely that those on the left have little to worry about, the fact that such debate exists has allowed advocates of her nomination to paint her as a "moderate" who will serve as a neutral arbiter. The Obama administration has taken up this theme, urging a swift confirmation. This same record and her apparent openness to those who hold more conservative views are likely to place her in a position of influence on the Court.

In many ways, Kagan's nomination parallels that of Chief Justice Roberts. Like Chief Justice Roberts, she has won respect in many quarters. While she lacks the practical experience Chief Justice Roberts obtained over decades of private practice as one of the nation's preeminent Supreme Court and appellate advocates, she may possess many of the same talents, contributing to an ability to advocate positions that move the Court marginally in the direction she favors. For the Obama administration, her nomination is likely to prove a shrewd one. The question for Republicans is whether they can mount a strong opposition.

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About the Author
Douglas Smith is a Senior Lecturer in Residence at Loyola University Chicago School of Law and adjunct scholar at the American Enterprise Institute.