When President Obama nominated Elana Kagan as solicitor general, Senate Republicans split, with key GOP senators voting for and against her. Now, a year later, Obama has again nominated Kagan, this time for the far higher post of Supreme Court justice. It's difficult to predict exactly how conservatives in Congress will react, but those in the punditocracy are already of two minds. Some praise her, some oppose. Here are the two sides.
The Conservative Case For Kagan
- She's No Liberal Ideologue Conservative legal blogger Ilya Somin highlights "one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas. ... her record at Harvard shows that she has respect for alternative perspectives and takes them seriously."
- Against Constitutional Right to Same-Sex Marriage Legal Insurrection's William Jacobson writes, "on one issue of critical importance to the left -- the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage. ... This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right."
- Liberals Don't Like Her Law professor Stephen Bainbridge gets real. "The enemy of my enemy may not be my friend, but she's probably acceptable. ... When I look at some of the lefties who are opposing her and their reasons for doing so, however, I'm tempted to conclude that she's the most acceptable--from my perspective--candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are."
The Conservative Case Against Kagan
- Banned Military Recruiters From Harvard The Weekly Standard's Bill Kristol zeroes in on "Her hostility to the U.S. military. ...Many important people are complicit in what Kagan regards as the "moral injustice of the first order" of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military. So Kagan needs to be asked: Why doesn't this reflect hostility to the military?"
- Insufficient Public Record National Review's Ed Whelan tells CBS News, "Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience. She's been extremely guarded about her views, with the exception of gay rights ... The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice."
- Too Bullish on Executive Power Libertarian-conservative Radley Balko laments how she would "shift the balance of the court on key civil liberties vs. war on terrorism issues." Additionally, "Kagan’s pro-government position extends to criminal justice issues, too. ... Kagan’s office also argued against expanding the rights of the accused and wrongly persecuted when a specific federal law wasn’t in question, such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits." Balko has much more.
This article is from the archive of our partner The Wire.
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