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Bill Press
He was the liberal lion on the
Which should come as no surprise. Not since Thurgood Marshall in 1967 has an openly liberal candidate been nominated to the nation's highest court. Since then, nominations have followed a predictable pattern. Republican presidents boldly name the most conservative justices they can find: like Scalia, John Roberts, Clarence Thomas and Samuel Alito. Democratic presidents timidly name the most centrist candidates they can find, like Sonia Sotomayor and Elena Kagan, in the hope they will grow up to become liberals.
For those on the left, it's a maddening practice that even Kagan herself complained about 15 years ago in the
Kagan is no flaming liberal. True, among the little we know about her positions on important issues of the day, we know she early on opposed the Pentagon's policy of "don't ask, don't tell." But we also know she approved the indefinite detention of terrorist suspects in Guantanamo, supports the Bush-Cheney doctrine of expanded executive power, and has argued that the Constitution offers same-sex couples no right to marry. On that last issue alone, she's less liberal than Laura Bush and hardly qualifies for membership in the
All of which is driving Republicans crazy. They believe they must come out strongly against Elena Kagan, simply because Barack Obama is for her. But her lack of a distinct liberal profile leaves them little to build a case on. So they've come up with two lame lines of attack, instead.
First, they've attacked her lack of previous service on the bench. Senator Mitch McConnell branded Kagan "the least qualified, in terms of judicial experience," of any nominee in the last 38 years. "The American people instinctively know that a lifetime position on the
How dumb does he think we are? What McConnell did not add is that the last nominee without prior judicial experience, 38 years ago, was conservative darling William Rehnquist. Like Kagan, Rehnquist didn't come from what lawyers call "the judicial monastery." And neither did some of the greatest minds who ever served on the court, including John Marshall, Earl Warren, Louis Brandeis, and Felix Frankfurter.
Republican criticism of Kagan for her lack of judicial experience is especially galling given that in
Republicans also accuse Kagan of being anti-military, and indeed anti-American, for blocking the military from recruiting on campus during her tenure as dean of
Yes, as dean, she continued an existing policy that recruiters could not use resources of the
In the end, liberals have more reason to distrust Elena Kagan than conservatives. All we can glean from her scant paper trail from her university,
Personally, I make that leap of faith based, not on her writings, but on her friends. As a young woman, Elena Kagan once worked with Congresswoman Elizabeth Holtzman, Professor Laurence Tribe, Judge Abner Mikva, and Justice Thurgood Marshall. That's mighty good company for any liberal to keep. A good deal of their liberalism must have rubbed off on her. I sure hope so.
Available at Amazon.com:
The Virtues of Mendacity: On Lying in Politics
Bush on the Home Front: Domestic Policy Triumphs and Setbacks
The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House
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Elena Kagan - Can She Fill John Paul Stevens' Shoes