April 11, 2010
Republicans Did Elena Kagan a Favor
Posted by Erik Gerding

Solicitor General and former Harvard Law Dean Elena Kagan is widely considered to be on Obama's short list to replace Justice Stevens.  If you flash back ten years, this would be surprising given that Senate Republicans held up her nomination by President Clinton to the DC Circuit.  If she didn't have a chance at an appeals court judgeship, how did she come to have a chance to join the Supremes?

Because those Republicans may have ended up doing her a huge favor.  Instead of having a decade or more of judicial opinions that could come back to haunt a Supreme Court nominee, Kagan has spent her time as an academic and in government.  Her handful of articles since she left the Clinton don't address hot button issues (unless you are my co-blogger, Mr. Zaring, and can get worked up about administrative law).  Her writing record was then truncated because of her becoming dean.  She could respond to questions probing her government service in the Clinton and Obama administrations by saying that the positions she took reflect her role as a lawyer and may not reflect how she would decide cases as a justice.

So being thwarted 10 years ago may end up making her more SCOTUSabile.  Are there other examples of blocked or abandoned nominees that benefitted from the bruising process?  Lani Guinier may have gained a wider audience for her ideas after Clinton abandoned her Justice Department nomination at the very start of his Presidency.  Will any Republican nominees held up by Democrats live to fight for SCOTUS another day?

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