Long before Supreme Court Justice John Paul Stevens’s April 9 announcement that he will retire this June, legal observers had already picked a front-runner for the seat Stevens has occupied for 34 years: former Harvard Law School dean and current US Solicitor General Elena Kagan.
Kagan is seen as the politically wise choice for Democrats. Some legal and political observers say the moderate credentials that earned her quick congressional approval in 2009 for solicitor general — the government’s head lawyer and spokesperson before the Supreme Court — would translate into a relatively smooth Supreme Court confirmation. Having already approved her as SG, it would be difficult for congressional Republicans to oppose Kagan’s nomination and paint her as “outside the mainstream.”
But this focus on short-term political calculation obscures the most significant consideration. On matters of executive authority — where the judicial branch has been a vital bulwark against post-9/11 “war on terror” civil-liberties violations — Kagan’s record indicates an ideological departure from Justice Stevens, who authored watershed detainee-rights opinions and organized the five-justice majorities that struck down other Bush administration power grabs.
To be sure, attempting to assess a judicial philosophy, much less a justice’s evolution once on the bench, is difficult (see David Souter). And Kagan’s tight-lipped nature regarding her personal legal philosophy, coupled with a scant paper trail, doesn’t help. But if her record — the few clues she provided as an academic, and in her tenure thus far as SG — is any indication, she’s more likely to side with the conservative bloc on matters of executive power and war-time presidential authority.
This is perhaps the signal legal issue of our day: the question of whether the nation can and will protect itself while preserving the separation of powers and fundamental individual liberties that have served the nation so well for so long.
Grandstand though they may, Republicans aren’t likely to block a Kagan appointment, so the question must now be asked: can Kagan be counted on to preserve and protect the nation’s legal institutions that have come under siege in the unremitting “war on terror”?
RED HERRINGS VS. REAL ISSUES
Conservative critics will drum up Kagan’s pro-choice and pro-gay-rights positions. But don’t read much into these red herrings; here, Kagan’s views mirror those of Justice Stevens, and will likely have little impact on the high court’s balance. Issues of presidential power and war-time authority will, however, persist as long as the war on terror continues. And if Kagan, 49, shares Stevens’s longevity, she could be on the bench until 2050.
Perhaps Kagan — credited with bringing conservative professors to Harvard Law, and thereby supplying some much-needed intellectual diversity to the sometimes-fractious faculty — could become a high-court coalition builder much in the mold of Stevens. But where Stevens used this ability to sway on-the-fence colleagues to oppose extreme proclamations of executive authority — such as in major habeas corpus and detainee-rights cases — we’re left wondering in what direction Kagan’s coalitions would shift a divided high court.