May 08, 2010
Is Elena Kagan Conservative?
Posted by David Zaring

On the weekend, it's fun to post far afield, even if it's not really your part of the blogosphere.  Is Elena Kagan conservative?  Many have been wondering. I certainly don't know, but, I suspect, nor does anyone.  The case that she is a conservative: her one serious article (which I cite regularly) is on how great it is that administrative law is increasingly controlled by the president - that's a conservative position.  And she got lots of conservatives appointed to the Harvard Law faculty.  The case that she's not a conservative: conservative elites, or at least 31 senators, voted against her SG confirmation; they must know something that we do not.  And the administration seems to think she's liberal enough.  And Peter Beinart thinks she's a lightning rod; Peter Beinart, the former editor of the New Republic at its most boringly conventional wisdom-flouting, is always wrong.

Although it really isn't my area, I'm finding the Elena Kagan inevitability meme to be strange, because it seems like the president is buying a pig in a poke.  For justices, it seems to me that you might want to appoint the smartest person to the job, or a person reliably in touch with your policy views.  Of course, nobody seriously tries to get the smartest person, a strange enough concept to begin with, but you'll note that neither Larry Tribe nor Richard Posner are sitting on the Supreme Court.  Which means you get someone you know, and I've never understood why presidents don't appoint more political hacks to the Court, given that that's what happens in the rest of the government.  Kagan has never seemed to me like a political hack; she's seemed apolitical, secretly political, or possibly conservative.

Going against these observations, by the way: political scientists think that one way presidents have figured out how not to appoint justices whose views can change is to look to prior executive branch experience (Rehnquist, Roberts, the DC Circuit is full of it).  Kagan, for everything she doesn't have, does have that, in two democratic administrations.  If she doesn't get the nod, should we feel sorry for an academic, someone in the view expression business, having had to hide her views for her entire career, only to not get the job she's been angling for since forever?  There's still time, of course, but you shouldn't cry for her.  It sounds like she's met with the President and Vice President for hours as a part of two short lists.  She's been the SG.  How many law professors can say that?

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