Conservative lawyers and academics are voicing support for Supreme Court nominee Elena Kagan, praise that could soften criticism from the right and provide cover for any Republican senators inclined to vote for her nomination.
The essence of their take on Kagan, the former Harvard Law School dean who now serves as solicitor general, is that she has the smarts to be a justice and can work with all sides on thorny issues.
“She has had a remarkable and truly unusual record of reaching out across ideological divides,” said Michael McConnell, a former federal appeals court judge who was nominated by President George W. Bush.
Longtime Kagan friend Miguel Estrada, whose appeals-court nomination by Bush was blocked by Senate Democrats, said, “She’s clearly qualified for the court and should be confirmed. Obviously, she’s a left-of-center academic who never would have been picked by a Republican. But no one can doubt her intellectual accomplishments.”
In a letter to the Senate Judiciary Committee last Friday, Estrada said, “If such a person, who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”
Former special prosecutor Kenneth Starr, who ran the investigation that led to President Bill Clinton’s impeachment, said charges by some conservatives that Kagan holds extreme views are off-base.
“That’s politics, and unfortunately confirmation politics have been very ugly, with a few happy interludes, ever since the nomination of Judge Robert Bork,” Starr said on MSNBC.
Conservative interest groups and some senators have raised questions about Kagan’s lack of judicial experience and suggested that she might be a “rubber stamp” for Obama on the high court. They also have seized on her opposition to military recruiters at Harvard over the Pentagon’s “Don’t Ask, Don’t Tell” policy on gay soldiers. The conservative critics argue that she would be a liberal, activist justice.
Carrie Severino, chief counsel to the Judicial Crisis Network, said endorsements by prominent conservatives do nothing to answer the questions about Kagan.
“I don’t think that really changes our analysis,” Severino said. “We’re very interested in finding out what kind of a justice she would be. As of right now, what we see looks very troubling.”
Severino’s group released a video last week blasting Kagan for barring military recruiters over “Don’t Ask, Don’t Tell.” GOP senators have said the decision casts doubt on Kagan’s fitness for the bench.
Thomas Goldstein, a Supreme Court lawyer who writes about the court and nominations for Scotusblog.com, said the support on the right is potentially useful to Kagan.
“When conservative icons strongly endorse Kagan, that knocks the legs out from under the claim that she’s either unqualified or a liberal activist. Those arguments end up looking like pure politics,” Goldstein said. “The endorsements also give critical cover to moderate Republicans who want to vote for her but worry about criticism from the right.”
So far, no Republican senator has announced support for Kagan, who received seven GOP votes when she was confirmed as solicitor general last year.
McConnell, who teaches law at Stanford University, agreed with Severino that Kagan’s stand on military recruiters was a “dreadful decision.” But he said that Harvard was like many other major law schools at that time in seeking to bar military recruiters over discrimination against gays. He said the episode was “not a serious black eye.”
He also said that Kagan will be a safe liberal vote in most cases that divide on ideological grounds.
Yet, he said, “as I chat with other center-right law professors, she’s got overwhelming affection and support.”
He attributed some of that support to Kagan’s openness to arguments across the political spectrum.
“She’s a bit unusual in this respect, particularly at this juncture when not just the Supreme Court but the country basically is divided into two camps that often cannot speak to each other,” McConnell said.
Kagan, who has known McConnell since their days as law professors at the University of Chicago in the early 1990s, wrote a letter of support for McConnell in 2002 urging Senate Democrats to confirm him.
She and Estrada have been friends since they sat next to each other in several law school classes 25 years ago. And Starr held the same job as Kagan, as President George H.W. Bush’s solicitor general.