Elena Kagan As the Next Earl Warren

Why progressives aren't cheering for Solicitor General Elena Kagan as President Obama's next nominee for the Supreme Court is an enigma, wrapped in a mystery.
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Why progressives aren't cheering for Solicitor General Elena Kagan as President Obama's next nominee for the Supreme Court is an enigma, wrapped in a mystery. She's got just the personality, intelligence, and experience to shape the Court for decades, at a time when the legislative agenda of the president is going to face the most hostile justices since FDR's court-packing days. Indeed, Kagan has the potential to become another Earl Warren in her ability to unite the Court in seminal decisions on divisive social issues.

Yet influential blogger Glenn Greenwald -- who courageously rallied lawyers opposing torture -- has made preventing the nomination of Kagan his personal mission. He bases his attack on what he believes Kagan should have done rather than what she actually has done. The core of his complaint is that Kagan did not speak out louder against the Bush (and now Obama) policies on waging war against terrorists, rather than coddling conservatives on the faculty at Harvard Law School, where Kagan was dean from 2003 to 2009. She now serves as the first female solicitor general of the United States, a traditional stepping stone for Supreme Court nominees.

But it's precisely her experience at Harvard that most qualifies her for the current Supreme Court vacancy. Surely a woman who can tame the fierce passions of warring conservative and liberal factions at Harvard Law can help mold a cohesive majority at the Supreme Court -- something even Justice John Paul Stevens was rarely able to do. Part of this, as Stevens noted, is because the Court has veered rightward, but it is also because the justices as a whole have not remembered their own institutional interest in restrained decisions. At Harvard, Kagan reminded the combatants that they were ultimately taking the school down with them. She built a reputation as an honest broker who identified common interests and advanced the ball.

Like Harvard, the Supreme Court has been damaged as an institution by perpetually dissolving into warring camps. A string of 5-4 decisions on either side of an issue merely prolongs the dispute and creates more work for lawyers and political fundraisers. How can Americans have any hope that the Constitution actually stands for something if its interpretation constantly varies with the election results?

This is not the president's first appointment, nor likely his last. But it is the appointment that could most influence the success of his health care initiative, which is about to go whizz-bang from the states to the Supreme Court. It's exactly for this kind of case that some conservatives on the Court have been sharpening their teeth, for decades. They want to reverse constitutional law a century and return to an era when state and federal legislation protecting health and workers rights was uniformly struck down as unconstitutional. As reported by Jeffrey Rosen in a 2005 article for the New York Times magazine, there is a "Constitution in exile" movement that aims to dismantle the regulatory state and return to the Social Darwinism embodied in the Court's 1905 decision, Lochner v. New York, which struck down maximum working hours for bakers.

It is precisely at such a constitutional turning point that someone with the social intelligence (read: political smarts) of an Elena Kagan can make a huge difference. The best example of this, ironically, is Earl Warren. A conservative governor nominated by a conservative president, Chief Justice Warren worked the justices like a seasoned pol to unify the Court in unanimous or near-unanimous decisions on some of its most controversial cases: desegregation, court-appointed counsel for accused felons, and school prayer. Contrary to its reputation, the Warren Court was not so much liberal as national: it wanted the Bill of Rights to apply equally to all Americans in all states.

As for critics of Kagan's nomination like Greenwald, who find her too cozy with national security absolutists, they should remember that Earl Warren himself oversaw the internment of Japanese Americans from California during World War II. Some constitutional scholars believe it was precisely because Warren had participated in such executive actions during wartime that he became even more devoted to protecting the rights of minorities. Perhaps Elena Kagan's experience crafting the Obama administration's wartime response to terrorists will help her draw a clearer line in protecting the constitutional rights of individual citizens against a natural security leviathan.

The truth is, we don't know what any justice will become once she joins the Court. But what the Court, and the nation, needs right now is a justice who can find common ground where it is possible. As Justice Stevens himself told the New York Times:

"What really for me marks a conservative judge is one who doesn't decide more than he has to in order to do his own job. Our job is to decide cases and resolve controversies. It's not to write broad rules that may answer society's questions at large."

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