Jess Chapman

Judge not, lest she have been a judge

In Government on May 11, 2010 at 8:00 am

I was disappointed a few weeks ago that Judge Denny Chin was unlikely to be nominated to the Supreme Court because, at that point, he hadn’t been an appellate judge yet. But if Solicitor General Elena Kagan can get a nomination without having been any kind of judge, maybe there would have been hope for Chin, after all.

What do we know about Kagan’s track record as SG? Her first argument was for Citizens United v. Federal Election Commission, in which she defended the government’s position on campaign financing, as is her professional mandate. She also defended a law, later ruled unconstitutional, that would illegalize depictions of cruelty to animals. During her confirmation hearing, her defense of “battlefield law” conducted outside of actual battlefields had a McCarthyist flavor to it. Those last two make me wary.

Also, as dean of Harvard Law School, Kagan attempted to ban military recruiters from coming to campus, though this ban was lifted for the one-year period that the Solomon Amendment was unconstitutional. At least she waited for legal breathing room before pushing her agenda. You’d think by this time she’d have seen the sense in allowing recruiters on campus, but the article hints that she may have done this in opposition to DADT – worth opposing, but not the fault of recruiters.

Final decision for today: As a White House adviser in the Clinton administration, Kagan supported a ban on late-term abortions with a mother’s-life exception – an idea from then-Sen. Tom Daschle (D-SD). This came at the expense of approval from abortion rights groups at the time, although pro-life groups will surely be pleased to hear of it now.

What of Kagan’s thoughts on today’s major legislative issues: jobs, counterterrorism, trade, the environment? These can often be a better indicator of overarching ideology than decisions on social issues. But as a Supreme Court justice, Kagan would rarely have to comment on anything but social issues, which makes things annoying for those of us who prefer not to write about them.

The biggest issue in this nomination, as has been mentioned, is the fact that Kagan has only had experience on the other side of Supreme Court battles with the government, and that’s not even 18 months’ worth. She is no doubt a prominent legal mind in the U.S., soundly qualifying her for her current position. I can’t say I oppose her nomination outright, but I can’t help but think she isn’t the best option to fill the open seat.

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