Elena Kagan — a Supreme Choice

Wednesday, 12 May 2010 09:59 AM

By Susan Estrich

  Comment  |
   Contact  |
  Print   |
    A   A  
  Copy Shortlink
Elena Kagan is not a surprising choice for the United States Supreme Court, but she is a very smart and deserving one. She is smart and honorable, a woman of character and integrity. And perhaps most important of all, in these times, she will be very hard to oppose.

I have to laugh when I hear conservatives complain that she is not qualified to serve on the court. The former dean of Harvard Law School? The current solicitor general of the United States? Sorry, my friends, but that dog don't hunt.

Then there's the argument that she's too liberal, the "judicial activist" routine. A judicial activist, I've come to conclude, is someone who goes out on the line to disagree with you. Liberals think defenders of the Second Amendment are judicial activists. Conservatives think the same of defenders of the First Amendment. The truth is, you can't interpret the Constitution without being an activist. You'd have nothing to say.

Pretending that the words of the First Amendment tell you whether images of dogs being crushed can be sold online, or that the words of the Second Amendment tell you how far a state can go in limiting the possession of certain weapons, is just plain absurd.

It's what nominees say when they're going through the modern charade called confirmation hearings. But no serious legal scholar, liberal or conservative, thinks that all a justice has to do is call balls and strikes. That's just what the smart ones say to get confirmed. If Judge Bork had been equally disingenuous, he'd be Justice Bork. Fool me once . . .

As for where Kagan actually stands on the ideological spectrum, my guess is that she's not as far left as liberals would like and not as far right as conservatives would hope — which is to say she's highly confirmable.

In the rarified world of legal academia, she'd almost certainly be counted as a moderate, not even close to a "lefty." (But that may be scant comfort, because the same is true of me.) Her academic writings have been careful, not controversial. Her tenure as dean of Harvard Law School was marked by broadly shared good will, not radical change, and great success in fundraising.

In the solicitor general's office, she has been a very effective advocate, a great boss and a popular presence. The court treats her with great respect. She gets along with liberals and conservatives alike. She is a great favorite on the Judicial Conference circuit, the get-togethers of federal judges around the country.

How do you beat a woman like her? You don't.

Some will probably argue that in picking Kagan, the president made a safe choice, and I think that is certainly true. But he also made a very good choice. Kagan's experience in the Clinton White House and at Harvard Law School (once known as the Beirut of legal education, in the days when Beirut was more like Baghdad) helped her develop a set of skills that is almost as important in a Supreme Court justice as legal brilliance.

She is a consensus-builder. She is a team player. She is ideally suited to succeed in an institution where five votes matter, not one.

When Justice Stevens, whom she will replace, first joined the court, he was known for his dissents. They were brilliant dissents, but they were, very often, lonely ones. I remember, clerking for him in the early years, telling him how this or that justice worked the halls or the phones to put together their majorities.

It was not his instinct, in those early years, to do that kind of politics. He wanted reason, argument and logic to carry the day. He had lunch every day with his law clerks, which was wonderful for us, but not a vote getter.

I think Kagan will be a very popular justice. I think she will be one of those who walks the halls, works the phones, does lunch and dinner. I think she will be a leader of the court for years to come. She happens to be, on a personal level, a lovely woman. I could not be more pleased for her, or more appreciative to the president

© Creators Syndicate Inc.

  Comment  |
   Contact  |
  Print   |
  Copy Shortlink
Around the Web
Join the Newsmax Community
Please review Community Guidelines before posting a comment.
>> Register to share your comments with the community.
>> Login if you are already a member.
blog comments powered by Disqus
 
Email:
Country
Zip Code:
Privacy: We never share your email.
 
Follow Newsmax
Like us
on Facebook
Follow us
on Twitter
Add us
on Google Plus
Around the Web
Top Stories
You May Also Like

Manage Your Healthcare With Persistence

Wednesday, 08 Oct 2014 09:06 AM

I've read a lot of stories about how you're supposed to manage your own health care, produce it even, as I've explained  . . .

President's Safety Above Politics

Friday, 03 Oct 2014 16:10 PM

Try this test. Pick up your local paper and tell me: How many of the issues that people in your community are concerned  . . .

Rest in Peace, Mom

Wednesday, 01 Oct 2014 09:28 AM

Today would be my mother's 88th birthday, which is not so old, but my mother seemed very old eight years ago, when she d . . .

Most Commented

Newsmax, Moneynews, Newsmax Health, and Independent. American. are registered trademarks of Newsmax Media, Inc. Newsmax TV, and Newsmax World are trademarks of Newsmax Media, Inc.

 
NEWSMAX.COM
America's News Page
©  Newsmax Media, Inc.
All Rights Reserved