Tuesday, April 20, 2010

A Thought About Elena Kagan

The three rumored front-runners for the next seat on the Supreme Court (viz., Kagan, Wood and Garland) all strike me as good choices. Based on what I know now, if it was up to me I’d probably go with Diane Wood from the Seventh Circuit. As I’ve said before, all other things being equal--and in this case they very nearly are--I prefer an experienced judge and, for reasons that are too ordinary to be worth recounting, I like her a little better than Merrick Garland.

But it has often been said that one thing that Obama should be looking for in a nominee is Justice Stevens’s skill at piecing together a liberal majority on cases dividing the conservative and liberal wings of the Court, usually by winning over Justice Kennedy. If that’s right, could there be a better endorsement than the one Charles Fried gives to Elena Kagan based on her ability to bridge ideological differences when she was Dean of Harvard Law School?
“Does this all mean that she is some kind of crypto-Republican who would shift the Court to the right? And what does her behavior as dean tell us about her ideology? My clear answers are no and nothing. I do not doubt that her heart beats on the left. After all, she clerked for Abner Mikva and Thurgood Marshall, two of the most liberal judges to sit on their respective courts, and she calls Marshall her legal hero. No, what it all tells us is that she came to Harvard Law School at a critical time in its history and determined that it was her job to make the biggest, richest, and most famous law school in the world also the best. And that she would do it by recruiting excellent teachers from across the ideological spectrum. That she would make students with every point of view feel as if they were part of an intellectual and professional enterprise. That the students and faculty should feel this was not just a place to come to work and an experience to be endured, but an enjoyable and satisfying part of a life that should be satisfying and enjoyable in its entirety. She saw that was her job; that was her role. She threw herself into it wholeheartedly. And she succeeded.”

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