Solicitor General Elena Kagan, said to be President Obama’s leading choice to replace Supreme Court Justice John Paul Stevens, would be a poor appointment who would be unlikely to mirror Stevens’ progressive voting record.
Kagan, former dean of the Harvard Law School, was a finalist when Sonia Sotomayor was appointed by Obama to the court last year. Because she has already been vetted – and has won praise from some conservative quarters – White House sources have stated that she heads Obama’s short list of candidates to replace Stevens.
“When President Obama chose Sonia Sotomayor to replace David Souter, that had very little effect on the ideological balance of the Court, because Sotomayor was highly likely to vote the way Souter did in most cases,” Glenn Greenwald wrote in Salon.
“By stark contrast, replacing Stevens with Kagan … would shift the Court to the right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor).”
No one claims that Kagan, who supports abortion rights and gay rights, is a conservative. However, she is more likely to vote with the Court’s conservative wing on such issues as executive power and civil liberties.
Candidates favored by progressives include Appellate Court Judge Diane Wood, former Yale Law School dean and current State Department legal adviser Harold Koh and Stanford Law professor Pamela Karlan. The only African American mentioned has been former Georgia Supreme Court Chief Justice Leah W. Sears.
Writing in the Nation, Ari Melber said, “With Justice Stevens retiring, it will take a nominee like Harold Koh just to maintain the Court’s status quo.”
Greenwald sees three dangers in a Kagan appointment.
“(1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of ‘post-ideological’ attribute Obama finds so attractive,” he writes.
“(2) for both political and substantive reasons, the Obama White House tends to avoid (with few exceptions) any appointees to vital posts who are viewed as ‘liberal’ or friendly to the left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial.”
He adds, “(3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General.”
The most disturbing aspect of a possible Kagan appointment is her admiration of the Federalist Society, whose goal is to advance the conservative agenda by pushing America’s legal system to the right.
Five of the nine members of the Supreme Court – Chief Justice John Roberts, Clarence Thomas, Antonin Scalia, Anthony M. Kennedy and Alito – have been members or close affiliates of the Federalist Society.
“They want to go beyond getting rid of affirmative action. They want to go back to Brown v. Board of Education,” Francis A. Boyle, a law professor at the University of Illinois, told me in 1999. Boyle noted that in a lecture at Columbia University, Scalia said if the landmark school desegregation case came before him today, he would vote against the plaintiffs, which would have the effect of maintaining segregated schools.
At a reception for the Federalist Society at Harvard, members gave Kagan a standing ovation.
“When Elana Kagan went before the Senate Judiciary Committee in February as President Obama’s nominee for solicitor general, Republicans were almost as effusive as Democrats in their praise for her,” Eric Lichtblau wrote in the New York Times:
“One Democrat, Amy Klobuchar of Minnesota, joked at the hearing that she understood how Ms. Kagan ‘managed to get a standing ovation’ from the Federalist Society, a conservative legal group.”
Many people voted for Obama with the expectation that he would appoint progressive judges to the bench. To do anything less, especially to placate conservatives, would be a betrayal of trust.
George E. Curry, former editor-in-chief of Emerge magazine and the NNPA News Service, can be reached through www.georgecurry.com.