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Obama Taps Elena Kagan for Supreme Court

Via everywhere, Solicitor General Elena Kagan will be nominated to the Supreme Court this morning at 10am in an announcement by President Obama. (Update 10:05 — Obama now has indeed named Kagan.) The President and Kagan worked together on the Law School staff of the University of Chicago. She worked as Deputy Counsel in the Clinton Administration, was the dean of Harvard Law School, and currently works as the Solicitor General of the United States.

Kagan, who clerked for Abner Mikva and Thurgood Marshall, has an appallingly thin public record for someone who will ascend to the nation’s highest court. Apparently the exception to the “publish or perish” rule in the academic world, Kagan has managed to get through a goodly portion of her life without so much as an opinion on most of the issues in the law. Perhaps she has been preparing for a Supreme Court nomination hearing, and the advantage of vagueness in that hearing, all her life.

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path — never revealing too much of herself, never going too far out on a political limb — that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama’s nominee for the United States Supreme Court […]

“She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life,” said John Palfrey, a law professor who was hired at Harvard by Ms. Kagan. “She is very effective at playing her cards in every setting I’ve seen.”

Ms. Kagan’s paper trail is scant, her academic writings painstakingly nonideological. And unlike Justice Sonia Sotomayor, a fellow New Yorker and Princeton graduate, who has written and spoken extensively about her childhood, Ms. Kagan, the daughter of a lawyer and a schoolteacher, is more private. During her academic and public life, she has rarely spoken of her political beliefs.

Kagan has a quintessential Upper West Side liberal pedigree, and within her writings you can pick out some hints of that – working for Liz Holtzman for Congress in 1980, her article on “Presidential Administration”, her opposition to don’t ask don’t tell, her college thesis on the rise of socialism (which should in no way be construed as anything but an academic review of the subject, actually). There are also warning signs, such as her writings on the First Amendment, her diversity record at Harvard law, her support of expansive executive power in the war on terror as Solicitor General and in her previous confirmation hearing. A more recent article uncovered by NPR may be leavening on that last issue, however:

“Hidden in plain sight, though, is a letter Kagan signed that neither liberals nor conservatives have commented on, though it is part of the public record.

“In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

” ‘To put this most pointedly,’ the letter said, ‘were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.’

” ‘When dictatorships have passed’ similar laws, said the deans, ‘our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.’ “

These hints don’t tell a full story one way or the other, and though Kagan criticized confirmation hearings as shallow and uninformative in 1995, you can bet that she’ll do her best to continue that practice in her own hearings. I think the problem many liberals have is that they’re heading largely into the unknown with Kagan at a time when, with 59 Senators and a tradition of following the President’s lead on matters of the Supreme Court, a more definitive choice could have been made. We know that Republicans will paint Kagan as a radical activist seeking to impart her views upon the law. We know, in fact, that the President knows that. This is from just a couple weeks ago:

In comments that are at odds with the conventional wisdom about what Obama needs to do to make sure the Senate confirms his nominee to replace John Paul Stevens, a White House official involved in the confirmation process tells TPMDC that the President isn’t taking a cautious approach to selecting a nominee. Despite having one less Democrat in the Senate than when Sonia Sotomayor was confirmed last year, the administration isn’t limiting itself to reviewing only centrist candidates for the court vacancy, the official said.

“It doesn’t matter who he chooses, there is going to be a big ‘ol fight over it. So he doesn’t have to get sidetracked by those sorts of concerns,” the official told me. The GOP has attempted to obstruct “anything of consequence” put forth by the Obama administration since he took office, the official said. “The president is making this decision with a pretty clear view that whoever he chooses is going to provoke a strong reaction on the right,” the official added.

What this means is that any choice would reflect precisely who Obama wanted to put on the Court; the political issues are completely irrelevant. So who is Barack Obama? Someone who puts a canny, cautious woman without much of a robust record or a public profile which people can judge onto the nation’s highest court. Elena Kagan is a pure reflection of Obama himself.

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David Dayen

David Dayen