Something To Note About Elena Kagan

Solicitor General Elena Kagan, if confirmed to the Supreme Court, would be the first Justice to sit on the Court since Lewis Powell to have a background that does not include service on an appellate bench.  General Kagan’s background is primarily academic, and she seems to have been a very good (but probably not stellar) academic.  We’re going to hear about her decision to not allow the military to recruit lawyers in response to the “Don’t Ask, Don’t Tell” policy while she served as Dean of Harvard Law School, much will be made of her having had Barack Obama as a colleague while teaching at University of Chicago Law School, and she will be unusually vulnerable to questions about her beliefs on particular issues during her nomination in light of a law journal article in which she suggested it was appropriate for nominees to make such disclosures and that it was politically important that they do so.  She’s liberal, but that’s not entirely a bad thing (at least, from a civil liberties perspective, which is what counts the most with me) and I can think of no serious objection to her nomination.  It’s a base hit, not a home run, for President Obama.  (Judge Diane Wood would have been a somewhat more ambitious pick.)

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. so much for civil liberties“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

  2. Agreed that this proposed test (gratefully rejected by the Supreme Court) is a disturbing suggestion. But I would be cautious about assigning a position adopted by an attorney in her capacity as an advocate for her client to herself personally. What's more, the argument has some substantial support in USSC precedent, so her attempt to restate a global rule didn't come out of left field by any means. And it doesn't mean that she would have adopted such a rule had she been a judge deciding the issue, either.

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