Jules Witcover

President Obama's nomination of Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court is another disappointment to many liberals. They hoped he'd pick a fire-breathing lefty as a counter to the Court's unreluctant dragon on the right, Antonin Scalia.

Instead, Obama has chosen a person who appears to be a political mirror image of himself -- either a pragmatic liberal or a liberal pragmatist, if that is not a distinction without a difference.

Rather than selecting a card-carrying liberal who could be depended on to go to the ideological mat against Scalia, the president has picked a skilled negotiator with a talent for persuasion to achieve wanted results.

It's said that Kagan, like Stevens, has the intellect and temperament to bring other members of the court around, offering the liberal minority, often on the short end of 5-4 decisions, a chance to prevail on occasion. Admittedly, it's a roll of the dice by Obama, but a pragmatic one.

To have nominated a flame-thrower on the left would have reassured doubting liberals already chagrined over his penchant for middle-ground solutions. But it surely would have invited a bitter Senate confirmation fight further poisoning an already partisan climate on Capitol Hill.

At a time Obama's oft-ridiculed bid for bipartisanship appears to offer some success in achieving congressional support for financing industry reform, the last thing he needs is a bitterly divisive Supreme Court nomination fight.

Still fresh in the minds of veteran senators of both parties are the consequences of such a predictably contentious nomination 23 years ago, when President Ronald Reagan put forward the name of another former solicitor general, Robert Bork. Then a federal appellate judge, he was rejected by the Senate in a fight that scarred interparty relations long afterward.

Bork was the iconic conservative champion of the concept of strict original constitutional intent, railing against the "judicial activism" of justices "legislating from the bench." Democrats led by Joe Biden, then chairman of the Senate Judiciary Committee, tore apart Bork's rigidly narrow positions, obliging Reagan to nominate Anthony Kennedy, a moderate conservative now regarded the swing vote on the Supreme Court.

Obama's choice of Kagan has not derailed early conservative allegations that the president has moved to put a liberal committed to doing his bidding on the court. They note that as solicitor general she defended his administration (and lost) in arguing against the Supreme Court's recent decision lifting limits on presidential campaign financing.

But Kagan -- unlike Bork, who had a long record of judicial rulings for the liberals to cite -- comes to the confirmation process with a blank slate, never having been a judge at any level. In place of that void, she has a distinguished record in legal academia, most recently as dean of the Harvard Law School, where she has been commended for bringing more conservatives to the faculty.

The fight against Bork was particularly intense and bitter because he was nominated by Reagan to replace a retiring moderate, Justice Lewis Powell. That fact enabled Biden to argue the appointment would sharply alter the ideological composition and direction of the court.

Kagan by contrast will be replacing Stevens, regarded the court's most influential liberal voice since his appointment as a Republican by a Republican president, Gerald Ford. The nomination indicates no likely change in the current 5-4 conservative breakdown.

The absence of a paper trail on Kagan's judicial views doesn't guarantee clear sailing for her through the Senate confirmation hearings. But the Judiciary Committee chairman, Democrat Patrick Leahy, has spoken favorably of having a non-judge on the court. He can be expected to be a friendly escort through the process.

Predictably, there will be the usual probing on where Kagan will vote on specific hot-button issues, attempted more for political effect than in vain hope of getting politically damaging answers. That is the inevitable consequence of the confirmation kabuki dance.

Meanwhile, Senate liberals will have to continue to cope with their reservations and disappointments with the pragmatism of Obama, as he cautiously navigates the course of change he promised in 2008.


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






Elena Kagan: Obama's Pragmatic Court Choice