Solicitor General Elena Kagan, whom President Barack Obama nominated to the U.S. Supreme Court, is largely a political mystery, which some observers say contributed significantly to her making the final cut. The tensest confirmation moments, White House officials likely reckoned, would occur during questioning about Kagan’s barring the ROTC from recruiting on the Harvard Law School campus in protest of the military’s “Don’t Ask, Don’t Tell” policy.
Kagan reportedly possesses a brilliant legal mind and the ability to build consensus — two attributes the president admires. But she also has no judicial record and a scant paper trail of scholarly writings and that could help minimize attacks during the confirmation process. But since her nomination was announced, conservatives have criticized her relationship with the late Supreme Court Justice Thurgood Marshall, for whom she clerked in 1987 to 1988. Liberals and African-Americans, on the other hand, have praised Kagan for her connection to the pioneering jurist.
Republican National Committee Chairman Michael Steele was one of the first conservatives to throw down the gauntlet by faulting Kagan for what he described as “support” for statements Marshall made suggesting that the Constitution “as originally drafted and conceived” was “defective.” Other conservatives followed suit.
“You can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment,” Steele said.
What Steele and other critics failed to acknowledge, however, is that Marshall was referring to slavery, which he wrote, required “several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”
In addition to her clerkship, Kagan sat on the Thurgood Marshall College Fund’s board of trustees. Dwayne Ashley, former CEO of the fund, recalled that she served on the development committee and shared with the organization fundraising strategies she employed at Harvard. Kagan also participated in its leadership institute, which assists students with resume writing and developing networking and interviewing skills.
Being an active member of the board, Ashley recalls Kagan saying, was a small way that she could pay back the guidance and mentorship that Marshall gave to her.
Black conservative commentator Lenny McAllister said he’s less concerned with Kagan’s relationship with Marshall than he is about her East Coast, Ivy League, inside-the-Beltway background, which he considers too far removed from real life. Indeed, he’s most worried that because she has no experience on the bench that she’ll present an almost mirror image of Obama’s views.
Rep. Sheila Jackson Lee, D-Texas, on the other hand, expressed admiration for Kagan’s decision to clerk for Marshall and imagines that she must have adopted some of his viewpoints as well as his desire “to assess the finer points of law to protect the most vulnerable.”
But according to other liberals, Kagan is no Thurgood Marshall. They fear her addition to the court will make it lean more rightward than it did when Obama took office.
“One of the problems we’ve got on the court is that there’s no strong advocate for a liberal position. The strongest so-called liberal advocates were Republican appointees. That’s as liberal as it got and how far the court has gone to the right,” Rep. Bobby Scott, D-Virginia, laments.
Scott added that a strong liberal perspective is critical for winning cases and crafting landmark dissents, citing Plessy v. Ferguson, which eventually became Brown v. Board of Education, as an important example.
