As David Weigel notes, the directions from which activists and pundits on the will attack the nomination of Elena Kagan to the Supreme Court are already fairly clear.
I. The Harvard Military Recruiters Controversy
Already this morning, one conservative blogger has called Kagan an “anti-military loon” for her role in banning military recruiters from Harvard Law School’s Office of Career Services:
[I]n 2003, Elena Kagan became dean of Harvard law school.
At the school’s first reunion for LGBT alumni, Kagan said the “military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country.”
As she wrote in an email to the Harvard Law community, her predecessor had “determined, as did all his counterparts at other law schools, that he should make an exception to the School’s anti-discrimination policy in the face of this threat to the University’s funding. I left this exception in force this year, once again because of the enormous adverse impact a prohibition of military recruitment would have on the research and educational missions of other parts of the University. This action causes me deep distress, as I know it does a great many others. I abhor the military’s discriminatory recruitment policy.”
In January 2004 Kagan and other Harvard faculty offered an amicus brief supporting the effort of a coalition of law schools challenging the constitutionality of the Solomon Amendment, arguing it violated university First Amendment rights of free speech. The schools called themselves the Forum for Academic and Institutional Rights, or FAIR. The case was FAIR v. Rumsfeld.
A Federal Appeals Court ruled later that year that the Solomon Amendment was unconstitutional and, the next day, Kagan issued an order banning military recruiters. Recruiters were still permitted to use the office of the school’s Veteran’s Association, however, and, ultimately, Kagan reversed the ban after the Federal Government threatened to withhold funds from the school if the ban was not lifted. Then, in 2006, the Supreme Court unanimously ruled that Federal Government could require universities to provide access to military recruiters as a consequence of receiving Federal funding.
Kagan will no doubt get grilled about this, but I can’t see it as being something that should disqualify her from serving on the Court, any more than it should have disqualified her from serving as Solicitor General.
II. The Experience Issue
Ed Whelan at The Corner sums up what is likely to be the first argument that many on the right will make:
Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.
Whelan seems to conveniently forget, however, that, prior to being selected by President Nixon, William Rehnquist’s experience consisted of being a Supreme Court Law Clerk, thirteen years of private legal practice, and two years as an Assistant Attorney General under John Mitchell. As I noted in an update to James’s post this morning, there are several examples in recent history of Supreme Court Justices whose record of legal scholarship was minimal prior to being nominated. Given that, I think calling Kagan the least experienced nominee in 50 years is more than a little overblown
III. Goldman Sachs
It’s quite likely that Washington’s favorite Wall Street whipping boy will become an issue in the Kagan nomination because she did some consulting work for Goldman Sachs during the Bush years:
On Friday, a slew of inquiries was made to the White House and Justice Department about a minor post Solicitor General Elena Kagan once held at Goldman Sachs, the investment bank under fire over controversial mortgage securities transactions. Kagan served on a Goldman advisory council between 2005 and 2008, with the task of providing expert “analysis and advice to Goldman Sachs and its clients.” For her work she earned a $10,000 stipend.
All of this was disclosed when Kagan went through the confirmation process to become Solicitor General, but now that Goldman Sachs is in the news, you can expect that Republicans on the Judiciary Committee will want to know what she did for the company, even though it’s highly unlikely it was anything signficiant.
IV. The “Socialism” Thesis
Last week, Michael Goldfarb at The Weekly Standard broke the news that Kagan had written her Princeton University senior thesis on the history of socialism in New York City:
What were Kagan’s own ideas?
“In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?”(pp. 127)
“Through its own internal feuding, then, the SP exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.” (pp. 129-130)
Her political sympathies (at the time) seem quite clear — and radical.
Somehow, I doubt that many Americans are going to care about something that Kagan wrote as an undergraduate in 1981, but you can count on the thesis being dissected, and receiving prominent, if distorted, attention from the likes of Glenn Beck.
There will, of course, be other, more ridiculous, lines of attack, such as the suggestion this morning that Kagan is somehow disconnected from the American people because her life in New York City means that she’s never really learned to drive a car. Unfortunately, I also think we’ll see at least a whispering campaign about her personal life, an issue which is so far from being relevant to my mind that it barely deserves to be mentioned.
None of these issues strike me as being sufficiently outrageous to make a Senate rejection a likely possibility. When Kagan was nominated for Solicitor General, seven Republicans (Coburn, Collins, Gregg, Hatch, Kyl, Lugar + Snowe) voted in favor of her. All it would take is one or two of these seven to stop any Republican effort to filibuster the nomination. Kagan will be confirmed, but you can expect that many Republican Senators up for re-election this year will use these talking points as an opportunity to help their own electoral prospects.
Update (Doug Mataconis): The Republican National Committee comes up with another talking point:
Republicans are questioning Elena Kagan’s ties to a liberal icon and the nation’s first African American Supreme Court justice, Thurgood Marshall.
In its first memo to reporters since Kagan’s nomination to the high court became public, the Republican National Committee higKagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”
“Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?” the RNC asked in its research document. “And Does Kagan Still Believe That The Supreme Court’s Primary Mission Is To ‘Show A Special Solicitude For The Despised And Disadvantaged’?”hlighted Kagan’s tribute to Marshall in a 1993 law review article published shortly after his death.
It is worth noting that in one very important respect, the Constitution as originally drafted was defective.
Further Update (Doug Mataconis): And, oh yea, the American Family Association is out with a statement saying that Kagan is unqualified to serve because she’s a lesbian.
