As President Obama announced his pick of Elena Kagan to fill John Paul Stevens on the Supreme Court this morning, businesses should have collectively exhaled. Kagan's experience as a judge is thin, so analysts don't have thousands of pages of her opinions to pore over like they do with many nominees. But from what we do know, even though she might not be the market's ideal pick, it's hard to imagine that she'll do business too much harm.
It Could Have Been Worse
The conservative arguments against Kagan boil down to the worries that she's too supportive of gay rights, not supportive enough of the military, and not an unwavering advocate for privacy. There's almost no one complaining that she's a fringe fiscal liberal -- because she isn't. Obama could have easily chosen such a judge who would have been very hard on business. Indeed, many progressives aren't thrilled with his pick.
Sure, she opposed the Citizen's United ruling, which opened up campaign spending for businesses. But that's because she was speaking as an advocate for shareholders, worrying that they may disagree with the political contributions of a company. Although many pro-business groups would probably disagree with her stance, it's hard find fault in her support of shareholder rights.
Moreover, in 2007, she wrote (.pdf) a short introduction to commentaries by Judge Richard Posner calling him "the most important legal thinker of our time." That's not a statement anyone believing in far broader government control over the markets would make, given Posner's libertarian-leaning interpretation of economics and law.
Additionally, she was a paid member of an advisory panel for Goldman Sachs from 2005-2008. She can't be too anti-Wall Street if she accepted money from Goldman. Though not hugely relevant for business in general, it's also interesting to note that she may have to sit out any cases involving Goldman that find their way to the Supreme Court.
She's a Consensus Seeking Pragmatist
Along the same lines, since she isn't a radical, she isn't likely to make for an activist judge. When dean of Harvard Law, she pushed for hiring top conservative scholars to improve the school. While that doesn't at all imply that she is conservative, it's also not the behavior of a close-minded ideologue.
In one investment case, Kagan is siding with the chamber. The justices will review a lower court decision that said a suit by Australian stockholders of Melbourne-based National Australia Bank Ltd. was beyond the jurisdiction of American courts, even though the case stemmed from allegedly fraudulent accounting by a U.S. subsidiary. Kagan said in court papers that the link between the subsidiary's actions and the shareholders' alleged injury was too tenuous to warrant letting the suit go forward in a U.S. court.
Probably Moves Court to the Right
As Stuart Taylor Jr. wrote earlier:
But Kagan's record suggests that she probably falls to the right of Stevens -- arguably the most liberal current justice -- at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.
It's hard to imagine that she could fall much further to the left of Stevens. So the worst business could probably expect is that Kagan strengthens the status quo. And as the Court has shown in recent cases like Citizen's United (which Stevens voted against), its majority will tend to be on the side of business with or without Kagan's support.
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