Conservatives for Kagan

Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.

There is plenty of material to support that claim -- and also some material that cuts against it -- in the tens of thousands of pages of documents involving Kagan's work in the Clinton White House from 1995 to 1999 that are being released in batches.

And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had -- before taking the bench -- been the most accomplished lawyer of the 20th century.

Not to mention Kagan's efforts -- much-decried by Republicans -- to exclude military recruiters from Harvard Law School's career services facilities as a protest against the law excluding gays from the military.

Still, Kagan's nomination -- unlike last year's nomination of then-Judge Sonia Sotomayor -- has been received with good will bordering on enthusiasm by some leading conservative academics.

Part of the reason is that Kagan's brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.

But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.

Kagan, on the other hand, has treated conservatives and their conservative-libertarian sometime-allies with respect, even friendliness, rather than brushing them and their ideas off with the disdain to which they have become accustomed.

While often disagreeing with conservatives, Kagan takes their ideas seriously. And she welcomes intellectual debate free of the politically correct taboos that so greatly narrow the range of acceptable discourse in much of academia.

It also helps Kagan with conservatives that she -- unlike Sotomayor -- has not been heard to pronounce white males inferior to wise women, whether of Latina or other origins, in the qualities that make for a good judge.

"President Obama's choice to fill the seat of retiring Justice John Paul Stevens could be much worse," writes Professor Marcus Cole, one of Stanford Law School's few conservatives, in the PileusBlog. "Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief."

Cole and other Kagan-friendly conservatives cite her role as dean from 2003 to 2008 in pushing to hire three conservative professors -- Jack Goldsmith, Adrian Vermuele, and John Manning, all of whom are among her fans -- along with a great many more liberals.

"I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court," adds Cole. But he says that "it does, I think, distinguish...Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce."

Among others expressing similar sentiments are Randy Barnett, a conservative libertarian law professor at Georgetown, and Charles Fried, a senior member of the Harvard Law School faculty who was solicitor general under President Reagan and who came to admire Kagan as a colleague and dean.

Fried has called Kagan "masterful" in dealing with Harvard Law School's fractious faculty and praised her as driven by genuine affection in dealing with colleagues of various persuasions and as "awesomely intelligent" overall. Justice Antonin Scalia, the Court's leading conservative theorist, has also had kind to things to say about Kagan, who -- as The Washington Post detailed on June 10 -- held a dinner in 2006 to honor Scalia at Harvard, his alma mater.

Kagan praised the conservative firebrand as "the justice who has had the most important impact on how we think and talk about the law, and that is whether we agree or disagree with many of his positions." Then she proceeded to disagree, agreeably, with Scalia on the debate over whether we have a "living Constitution."

Critics of Kagan warn their conservative allies not to be beguiled by her disarming manner. And it remains to be seen how often Kagan will find common ground with Scalia and other conservatives once on the Court. More often, it seems likely, than Justice Stevens, who has for many years been the most liberal justice and increasingly bitter in his dissents from conservative decisions.

Kagan could nonetheless swing the Court leftward if she canĀ persuade swing-voting Justice Anthony Kennedy to side with the liberals more often when his vote is up for grabs. It's never easy for a rookie justice to influence a veteran. But Kagan will be an unusually persuasive rookie.