Elena Kagan Is Obama's SCOTUS Nominee

Elena Kagan, currently serving as Obama's Solicitor General, will reportedly be nominated today as retiring Supreme Court Justice Anthony Kennedy John Paul Stevens' replacement.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

Because Kagan's got no bench experience, her nomination is being compared to Bush's nomination of Harriet Miers, which is not totally fair given Kagan's depth of experience and much more impressive résumé, but is not totally unfair, either, given Kagan's position in the administration.

To be totally honest, I'm personally more concerned about Kagan's lack of experience on the bench not because I feel it's universally inappropriate (or even necessarily a bad idea) to nominate someone with a more nontraditional background to SCOTUS, but because it doesn't provide an easy way to assess her judicial philosophy.

Paul Campos notes that Kagan is a blank slate, and LeMew notes: "When you're reduced to noting that a prospective nominee for the highest court in the land is a 'brilliant conversationalist' and that other Harvardites think she's good people, one has pretty much conceded that the pick is Ivy League nepotism of the worst sort."

Indeed so. Which leaves everyone guessing.

There are clues, hints, suggestions, whiffs that she might be a good progressive:

Kagan's professional biography reveals that she has spent the last several decades working closely with some of the country's best known left and center-left figures. ... [She] clerked for Thurgood Marshall, another liberal icon, whom Kagan has called her legal hero and the greatest lawyer of the 20th Century.

...Kagan's (admittedly scant) writings on the subject suggest that she might instead embrace Marshall's view that the Constitution should be interpreted expansively to provide rigorous protections for the dispossessed. In eulogizing her former boss in a 1993 law review article, Kagan observed that Marshall's pragmatic jurisprudential approach considered not just the law as written, but "the way in which law acted on people's lives." As Kagan noted, this approach demanded "special solicitude for the despised and disadvantaged." Kagan lauded this view of the judicial role, saying that "however much some recent justices have sniped" at Marshall's vision, it remained "a thing of glory." In the article's closing, Kagan nodded to the progressive view that the Constitution grows and adapts to meet the needs of a changing society, giving Marshall "credit" for our "modern Constitution."

Even if Kagan's judicial beliefs don't align with Marshall's in all particulars, her willingness to praise his general judicial principles suggests that she, like Marshall, sees the Constitution as a dynamic bulwark against majoritarian tyranny and political persecution.

Which sounds pretty good. But.

If you're a progressive, she's made troubling comments about executive power, has troubling ties to Goldman Sachs, and has a more-than-troubling record of diversity in hiring while dean of Harvard Law.

So. She's without a comprehensive record of flatly-stated positions on key issues, and she's rumored to be a good progressive, but there are indications she might really be a centrist. Sounds like someone else I know.

This nomination is, in my assessment, classic Obama.

I give a big "wev" to what I imagine her judicial stylings will be on the bench, and a thumbs-up to seeing another woman making her way to the Court.