Writing in the Washington Post in February, law professor Jeffrey Rosen made the provocative suggestion that President Obama should nominate himself to the Supreme Court. On Monday, Obama ended up doing just that.
Well, sort of.
In Elena Kagan, who is just one year apart from him in age, Obama has found somebody whose biography, temperament, and values (as far as they are known) closely resemble his own.
Like Obama, Kagan graduated Harvard Law School and taught law at the University of Chicago. Look into the backgrounds of Obama and Kagan, and you’ll find evidence of radicalism that was tempered by personal ambition. Obama served as the first black president of the Harvard Law Review and Kagan was the school’s first female dean, and they both had a reputation for treating conservatives fairly, despite ideological disagreements. Just as Obama ran for president on a thin public record, Kagan doesn’t offer much of a paper trail, leaving her views on many key issues open to speculation.
In 1980, according to the Daily Princetonian, Kagan got drunk on election night after liberal Democrat Elizabeth Holtzman lost a Senate race in New York, and regularly wrote editorials taking ideologically liberal positions.
“Where I grew up -- on Manhattan’s Upper West Side -- nobody ever admitted to voting for Republicans,” Kagan wrote after that election, according to the New York Times. As a child growing up in New York City, she wrote, those who were elected to political office were “real Democrats -- not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”
As her undergraduate thesis topic, Kagan chose to write about the demise of the American socialist movement, a story which she called “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America.... In unity lies their only hope.”
She explained in the acknowledgements that her brother’s “involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”
While such statements will be repeated within conservative circles, they are unlikely to seriously damage her confirmation chances, just as connections to terrorist Bill Ayers, former PLO spokesman Rashid Khalidi, and Rev. Jeremiah Wright didn’t prove fatal to Obama’s presidential campaign.
In Obama’s case, the fact that his own public statements were more measured and reasonable-sounding than those he was being connected with allowed the campaign to portray any criticism as “guilt by association.”
In Kagan’s case, the writings come from her time as a college undergraduate, and since then she has been (for the most part) careful to avoid controversy. Her thesis adviser, Princeton history professor Sean Wilentz, has already been publicly defending the socialism paper, arguing that “Studying something doesn’t necessarily mean that you endorse it.”
During the presidential campaign, speculation was rampant about what Obama truly believed. While conservatives were concerned about his radical roots, in the early stages of the primaries, a lot of liberals were worried that he’d be too conciliatory to the right, especially on domestic issues. The media liked to portray him as a post-partisan, non-ideological pragmatist. His meager track record on the national stage, and his tendency to speak in a nuanced manner to mollify both sides, led political observers to make all sorts of wild assumptions.
For instance, declaring himself a conservative for Obama in July 2008, economist Larry Hunter wrote that “I suspect Obama is more free-market friendly than he lets on.” Hunter’s reasoning at the time? “He taught at the University of Chicago, a hotbed of right-of-center thought.” (He subsequently became a critic of Obama.)
If the early reaction to the Kagan nomination is any indication, we’re likely in for a similar experience. While many conservatives are emphasizing evidence of her extreme liberalism, some have quietly argued that it’s about the best pick that can be hoped for out of Obama. At the same time, she’s drawn criticism from liberals who are concerned that she has overly broad views of executive power.
On Monday, documents surfaced revealing that while working in the Clinton White House, Kagan advised President Clinton to support a compromise bill on banning late-term abortions. But it’s unclear whether such advice tells us anything about her personal views on the issue.
The mainstream media, as it did with Obama, is doing its part to portray Kagan as a centrist. A Washington Post headline Tuesday read, “For Supreme Court nominee Elena Kagan, a history of pragmatism over partisanship,” while a New York Times’ piece was titled, “A Pragmatic New Yorker on a Careful Path to Washington.”
In another piece published last Friday in anticipation of the Kagan nomination, the Times looked at her most controversial moment in the public spotlight when she denied military recruiters access to the Harvard Law School career office as dean, in protest over the “Don’t Ask, Don’t Tell” policy. The Times story insisted that “Her management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.” (Had Kagan totally barred military recruiters, the university would have stood to lose hundreds of millions of dollars in federal aid.)
The article cites Harvard Law professor Robert H. Mnookin, who delivers a quote typical of the sort of descriptions one often sees applied to Obama: “Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot.”
In announcing the nomination on Monday, Obama praised Kagan’s “temperament -- her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” He spoke of her recruitment of conservative professors and her encouraging students to “to respectfully exchange ideas and seek common ground...”
All of those are qualities that, coincidentally, Obama’s admirers see in him. In Rosen’s article making the case for Obama as Supreme Court justice, he writes that “it’s [Obama’s] even temperament and low boiling point that seem tailor-made for the court at this polarized moment.”
As president, Obama shed his carefully honed image as a post-partisan leader, and has governed decidedly from the left. In Kagan, he may have found somebody who will make rulings in the same manner.
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