Saturday, May 8, 2010

What Are Kagan's Views on Constitutional Law?

In an op-ed published by The New Republic, Professor Paul Campos persuasively argues that Elena Kagan's views on constitutional law are virtually unknown.  He attributes this to the fact that she has written very little in terms of legal scholarship and has avoided taking public stances on political issues.  According to Campos, because Kagan is a "blank slate," many of her supporters are merely projecting their own ideological views upon her (much like President Obama's supporters did prior to his election):
[T]he support for Kagan's nomination has been based not on her legal views, but almost entirely on her character. Many friends and colleagues from various stages of Kagan's career—the University of Chicago (where she received tenure in 1995), the White House (where she was associate counsel to President Clinton), Harvard Law School (which granted her tenure in 2001 and made her dean two years later), and the Department of Justice (President Obama appointed her Solicitor General)—have stepped forward to support her. They insist that, because of the sterling reputation she's earned in her various roles, Kagan will make a great judge. What's more, various groups who respect Kagan personally and professionally have projected their own views onto her "blank slate"; progressives believe she's a liberal, centrists assume she's a moderate, and conservatives say she isn't a bleeding heart.
With the Supreme Court busy curtailing individual liberty, augmenting corporate power, and restraining the ability of lawmakers to deal with inequality and other social problems, Obama should pick a person whose commitment to progressive values is easily discernible.  Harold Koh and Pamela Karlan are two academics with a long record of progressivism and accomplishment -- as demonstrated by numerous scholarly writings. And Diane Wood is a judge with a long record for voters to scrutinize.

I suspect that Obama is looking to appoint someone without a large written record in order to avoid a fight with Republicans. Well, the Supreme Court is worthy of a fight. The stakes are too great.


Decidere said...

The problem with this crew is that "avoiding a fight" first of all never avoids the fight and second, it gives in to conservatives from the get-go.

Strange of Obama to reach for his Harriet Myers moment so early in his presidency.

Darren Lenard Hutchinson said...

Decidere said: "The problem with this crew is that "avoiding a fight" first of all never avoids the fight and second, it gives in to conservatives from the get-go."

I agree!

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