by Mallie Jane Kim
Supreme Court Nominee Elena Kagan's Senate confirmation hearings are unlikely to derail her confirmation, experts say. But they are also unlikely to reveal how Kagan would make decisions on the high court if confirmed. Her praise of Israeli so-called "activist" judge Aharon Barak as "my judicial hero" will make a splash, as will her temporary ban of military recruiters from Harvard Law School's career services office. But will these issues matter when Kagan is sitting on the bench? "You can have a significant issue at a hearing that will have little to do with what the person will be like as a justice," says Tom Goldstein, Supreme Court litigator and publisher of the non-partisan SCOTUSblog. While it was easy last year to look at then-Supreme Court Nominee Sonia Sotomayor's record of court cases to learn her disposition as a judge, Kagan's thin paper trail makes it impossible to pin down her worldview, let alone her interpretation of the Constitution. But there are a few clues. Here are ten factors that will likely shape Kagan's decisions on the Supreme Court.
1. No judge experience
Unlike the current Supreme Court Justices, Kagan has no previous judicial experience. Historically, this is not unusual. Past judges include U.S. senators, state legislators, attorney generals, practicing lawyers, and even a past president, William Howard Taft. "It is hard to predict what it is about someone's background that will be important to them and how it will play out," says Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law School. "So the best way to get a meld of different views on the court is to have a diversity of different backgrounds, different life experiences."
2. Leans left politically, but not far left
The little available evidence of Kagan's political views paints her as on the left, but not too far left. On abortion, a hot-button issue in Supreme Court nominations, Kagan disappoints both abortion-rights and anti-abortion activists. As an aide in the Clinton administration, she advised then-President Bill Clinton to take a middle-of-the-road approach to legislation banning late term abortion.
As dean of Harvard Law School, Kagan called the military's "don't ask, don't tell" policy banning homosexuals from service "a profound wrong -- a moral injustice of the first order." This thinking may influence her opinion if gay marriage works its way to the Supreme Court, but it may not be a one-for-one translation. In a written response during her confirmation process for Solicitor General, Kagan wrote "there is no federal constitutional right to same-sex marriage," a statement of fact that does not reveal Kagan's personal stance on the issue.
3. Solicitor general experience
As Solicitor General, Kagan gained a unique view of the Supreme Court, representing the U.S. government in cases before the Court and, as necessary, providing amicusbriefs, which present the legal view of the U.S. government in cases when the U.S. is not a party involved in the case. "A solicitor general does have a very big view as to what the litigation is and what the issues are that are going to be coming before the court," says Karen O'Connor, founder of American University's Women & Politics Institute and Supreme Court expert. If Kagan is confirmed, her intimate understanding of what determines the government's legal view will impact the weight she lends to briefs from future solicitor generals.
4. Knowledge of Policy Making
Kagan has a deep understanding of how the executive and legislative branches work. Recently released memos from Kagan's tenure as Deputy Assistant for Domestic Policy and Deputy Director of the Domestic Policy Council in the Clinton administration reveal she was actively involved in crafting and advancing policy, interacting often with legislators on Capitol Hill.
5. Analytical scholarly writings
Experts caution it's difficult to predict a nominee's value system based on scholarly writings, but Kagan's analytical approach to scholarship may be a valuable predictor of how she will act as a justice. Harris explains most law professors write theoretically, but Kagan writes to make sense of legal doctrine, which is the law as interpreted by court decisions.
6. Ability to find common ground
When Kagan took the reigns of Harvard Law School, factions between liberal and conservative faculty members meant a toxic environment, but Kagan brought them together through compromise, specifically regarding new hires. President Barack Obama touts his nominee as a consensus builder, but Harris explains Kagan's success as dean may not translate to an ability to unite the Supreme Court. "I don't think the Court is a political body; you don't wheel and deal, you don't negotiate, you don't trade," Harris says. "It's not that kind of a setting."
7. Strong personality
In the Clinton White House and as dean of Harvard Law School, Kagan learned to deal with big egos and important people, so it won't take her long to feel comfortable speaking out on the Court. "She's somebody who can roll with the punches and give back as good as she gets," says O'Connor. "She's not going to be intimidated by the rest of the justices."
8. Gender
If confirmed, Kagan will be the fourth female Supreme Court justice in history and the third woman on the current Court. But her experience is different from the pioneering former Justice Sandra Day O'Connor and Justice Ruth Bader Ginsburg, the first two woman on the court, simply because times have changed. "She's of a generation of women really that are comfortable in positions of power," says Michael Dorf, a professor of constitutional law at Cornell University. "But she undoubtedly is aware of persistent issues of sexism and gender inequality."
9. Age
Recent Supreme Court cases on software patents, Internet pornography, and freedom of speech online reflect technology's increasing role in society. Kagan's relative youth means her exposure to technology is greater. At 50, Kagan will be the youngest judge on the court, joining Justices Roberts and Sotomayor as the under-60 crowd. Her influence on the Court could stretch three decades or more.
10. Pragmatic vs. Idealistic
Justices often split on conservative vs. liberal lines, but Goldstein says they can also split on how they view the law, idealistically or pragmatically. When interpreting statutes, idealist, or strict constructionist, justices pursue a textual purity, focusing on the letter of the law. Pragmatic justices look at the spirit of the law. They consider what Congress would have sensibly intended by the words they wrote. Goldstein says the younger justices tend to be more pragmatic, and Kagan is unlikely to be an exception. "She never, in those [Clinton] memos, says 'we just got to take a stand on principle, here,'" he explains. "I think she will be in the 'let's make this work' camp."
Available at Amazon.com:
The Atlantic and Its Enemies: A History of the Cold War
The Feminine Mystique
The Disappearing Center: Engaged Citizens, Polarization, and American Democracy
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