Elena Kagan’s confirmation hearing questioning begins Tuesday, June 29, 2010. Will it be a show down or a blow off? Many conservatives argue about Kagan’s lack of judicial experience. It is not her lack of judicial experience that concerns me, although, it couldn’t but help her. I’ve written before that many Supreme Court justices were not former judges. That list includes some of the best legal minds on the high court including former justices William Rehnquest and Earl Warren, both nominated by a Republican and also Justice Felix Frankurter.
It is not her lack of experience in the court room as a trial lawyer that concerns me. Yet, trial experience would be a plus factor. I also take no issue with her ivy tower educational background from Princeton, Oxford and Harvard. Her work background has largely come from academia in the halls of University of Chicago and as Dean at Harvard. Until last year when she became Solicitor General, she never had any appellate court experience. These will definitely be issues for Republicans. These factors alone do not concern me. But, the combination of all these things, her lack of any judicial experience, lack of trial lawyer and court room experience, mostly academia work and her ivy league background is what gives me pause. To her credit, she has worked in all three branches of government during her career, as Senate staffer, Clinton white house lawyer and law clerk to Justice Thurgood Marshall.
The cases coming before the Supreme Court involve and affect the lives of everyday people. Having more of the common touch in her background couldn’t but help her to understand the cases coming before her. While it will be her job to interpret the Constitution, it is also her job to apply constitutional law to the facts of the case. No doubt she is qualified to understand the issues involved in the cases that will come before her. But does she lack the common touch or what was referred to as the “empathy factor” by President Obama in the selection of Justice Sonia Sotomayor? Despite the ripping that President Obama and Justice Sotomayor received regarding the “empathy factor” statement, it is a needed component to fully compliment a justice’s qualifications. The cases before the Supreme Court do not come out of a vacuum. They involve people of all walks of life. Having a diverse background which touches upon the diversity of all persons is what is also needed.
Kagan has been assailed by conservatives for her politics during the Clinton era. As a lawyer, she offered legal and political advice in Whitewater, Paula Jones and other issues. As a Supreme Court justice, she will be required to put politics aside and judge the law. This is where it gets tricky. If the Supreme Court justices really did set aside politics, would George Bush have become president? Let’s not forget Gore v. Bush, where the Supreme Court justices all but decided the 2000 presidential election. Putting politics aside would mean a different decision in the recent Supreme Court case of Citizens United v. Federal Election Commission where the high court blocked the ban on big corporate political spending. She will fare as well as the other justices on the political issue.
So, is Elena Kagan qualified to serve as the next Supreme Court justice? The American Bar Association gave her its highest rating of “well qualified”. The National Bar Association stopped short of that rating and found her “qualified” to serve on the US Supreme Court. She did not receive the National Bar’s rating of “well qualified” which it reserves only for those found to merit the strongest affirmative endorsement.
Should Elena Kagan be confirmed? The simple answer is yes, barring any unforeseen circumstances during the hearing. Will she be confirmed? Again, the simple answer is yes. Elena Kagan makes for a good political choice for Supreme Court justice. My concern is what will happen after her confirmation. That’s the hard answer. With her background and a scant paper trail, no one knows the answer. That’s also the scary part.