President Obama’s nomination of Elena Kagan to replace retiring Associate Justice John Paul Stevens is producing expected and unexpected responses. Together, they add up to a pretty decent nomination from a moderate point of view.
Among the expected responses is the hostility from purists among conservatives. Among the initial flash points is Kagan’s outspoken opposition to the “don’t ask, don’t tell” policy barring military service by out-of-the-closet homosexuals. While serving as Dean of the elite Harvard law school, Kagan not only expressed opposition to military recruiters on campus, but tacitly encouraged harassment of those recruiters by campus activists. This practice, which seems common from many law school administrators chafing under the mandates of the Solomon Amendment, rightly draws concern from those who point out that recruiters are merely low-level functionaries that do not set policy and who are providing an employment choice to law students that do not necessarily share the political orientation that left-leaning administrators and campus activists seek to make mandatory. Nonetheless, it is over the top to deem Kagan “anti-military” based solely on her problematic expressions of a very common (and carefully edited) set of objections to the DADT policy. It is nonetheless clear that complaints about her indulgence in campus administrator activism is a pretense for conservative opposition to Kagan. Having blocked her nomination to the federal bench during the Clinton administration, it is highly unlikely that most Republicans were going to vote to confirm her to the Supreme Court anyway, particularly in the current hyper-polarized political environment in Washington. Opposing President Obama is an end in itself these days. The President could have nominated Judge Posner, and hardline conservatives would have found a way to oppose it.
What is more surprising, however, is the emergence of strong opposition from some left-wing purists who have expressed disdain for Kagan’s apparently pragmatic views towards executive power. Indeed, some have complained that Kagan is the “most conservative” possible appointment for the President to make. Others have complained that Kagan hired (gasp!) conservative legal scholars to the Harvard law school faculty while serving as Dean and that those hires failed to reflect progressive notions of “diversity” grounded exclusively in racial, ethnic, and gender categories. To many progressive activists, this kind of govern-from-the-center thinking on both Obama’s and Kagan’s part does not reflect the virtues of pragmatism and intellectual open-mindedness, but rather an intolerable betrayal of partisan purism while replacing one of the most consistently progressive Supreme Court Justices in memory. The purist progressive read on this nomination is also almost certainly just plain wrong, since even this “most conservative” nomination is extremely likely to be a reliable vote on key progressive issues including abortion rights, gay rights, and labor issues.
It is, however, precisely this hostility of purists from both right and left that gives moderates a reason for optimism about the Kagan choice. Assuming that they are on-target in their descriptions of Kagan (and given their mutual records for hyperbole and intolerance, that is a big assumption), the composite picture of Kagan is that of a pragmatist who is willing to combine some deeply-held principles with a willingness to seriously listen to arguments from those who disagree. That a preference for open-minded argument over slavish adherence to dogma feels dangerous to purists is an indictment of their world-view, not Kagan’s.
And, given the close ideological split on the Court these days and the growing number of fragmented decisions lacking in clarity or precedent-setting authority, it may be exactly the kind of Justice we need most.
The author also prefers open argument over dogmatic diktat. Argumentative comments are welcome by email. Dogmatic comments will be fed to the dogs.