Well, there’s that. I will write about this more in-depth in the coming days, as time allows. Suffice it to say that I think Kagan is a perfectly fine nominee; she’s very intelligent, she seems like a team player and she surely will be more than a competent Supreme Court justice.
But my perception of Kagan is that she’s a little bit gutless. And I would love to have seen Obama pick a slightly more daring, forward-thinking liberal — someone who isn’t afraid to take unpopular positions, and who is willing to put what’s right ahead of what is politically expedient. Sotomayor was another relatively centrist, highly-accomplished, incredibly intelligent pick who, while a bit braver than Kagan, is a model of judicial restraint. Despite the racist and sexist accusations throughout Sotomayor’s confirmation hearings, she is in reality a very centrist, conservative (in the judicial sense, not the political one) justice. I would have been much happier if, after getting a fairly “safe” choice onto the court, Obama went for a balls-out (or ovaries-out) liberal. My biggest concerns about Kagan are her lack of that kind of bravery, and her loyalty to this administration. The Bush administration consolidated executive power in extraordinary and terrifying ways; the Obama administration has been loathe to cede any of that power back. The Supreme Court will be tackling important questions of executive authority in the years to come, and I worry that Kagan will be more deferential to the government than I would like her to be.
At least she’ll probably be a fairy easy confirmation. The only thing that conservatives have to hang their hats on are the usual abortion and gay-rights issues — slightly more heated here after Kagan’s decision to briefly bar military recruiters from Harvard Law, since they violated the school’s anti-discrimination policy. But — and again, this is something I’ll tackle later when I have the time — that’s largely a non-issue, and (hopefully) won’t be too divisive of an issue once it’s actually explained. Especially since Kagan eventually did let the recruiters back on campus.
The New York Times has a run-down of Kagan’s notable statements and writings, and they are… not great. Some high/lowlights:
“I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”
“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”
“It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act.”
“There is no federal constitutional right to same-sex marriage.”
Anyway, it’s nice to see Obama nominating another accomplished and intelligent woman to the court. But with so many of those women to pick from, I wish he had selected someone a little bit more progressive and a little bit less safe.