Elena Kagan: Obama's Pragmatic Court Choice
President Obama's nomination of Solicitor General
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
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
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
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
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
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
The fight against Bork was particularly intense and bitter because he was nominated by Reagan to replace a retiring moderate, Justice
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,
The absence of a paper trail on Kagan's judicial views doesn't guarantee clear sailing for her through the
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.
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Elena Kagan: Obama's Pragmatic Court Choice | United States
(c) 2010 Jules Witcover