Monday, May 10, 2010

Kagan for the Court

As I guessed on Saturday (here), current Solicitor General Elena Kagan is President Obama's choice to replace retiring Justice John Paul Stevens on the US Supreme Court. Over at Concurring Opinions blog (here), my colleague Gerard Magliocca calls this an "uninspired choice"; Gerard thought she mishandled the Citizens United case (in which the Court overturned campaign finance restrictions on corporations), and is not a very good writer (although he does believe she should be confirmed). He may be right that Obama has missed an opportunity to appoint a truly outstanding jurist qua jurist. But that hardly distinguishes Obama from other recent presidents. Certainly, Kagan is no less inspired a choice than several other recent additions to the Court.

If Kagan's appointment is "uninspiring," it is nonetheless solid. She is smart, able to forge consensus (as her successful deanship at Harvard indicates), and sensible (another quality currently in short supply on the Court, IMHO).

The Senate confirmation hearings should be interesting. If I recall correctly, more than 30 Republican Senators voted against confirming Kagan to her current position as SG. I can only suppose that many more will line up against her confirmation to the Court. One point of controversy will surely be her support, as Dean at HLS, to prevent the armed forces from recruiting at the law school for violating the law school's policy against discrimination based on sexual orientation. Opponents will also seek to make an issue of her lack of prior judicial experience. But, of course, many Supreme Court justices in the past lacked prior judicial experience.

I don't intend to watch the dog-and-pony show known as the Senate Confirmation Hearings, though I will read reports on them, and pass along any interesting tidbits.

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