Kagan is coming


The Elena Kagan nomination looks like a glide to the bench. But in politics, nothing is ever certain.

Nonetheless, many things can be assumed to be likely. In the post-Bork nomination world of the past 20-plus years, those who have had ambitions to rise in the judiciary have learned to be completely uncontroversial in every word and deed, if not in thought. In a column for The New York Times, David Brooks was struck by the extraordinary caution Kagan has displayed throughout her legal career. He cited Tom Goldstein at SCOTUSblog who called her "extraordinarily---almost artistically---careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."

Brooks himself observed:

"She has become a legal scholar without the interest scholars normally have in the contest of ideas. She's shown relatively little interest in coming up with new theories or influencing public debate. Her publication record is scant and carefully nonideological. She has published five scholarly review articles, mostly on administrative law and the First Amendment. These articles were mostly on technical and procedural issues."

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For those interested in Kagan's total inexperience at actually judging, James R. Copland at City Journal has unearthed Kagan's own views on that matter:

"Elena Kagan, President Obama's nominee to succeed John Paul Stevens on the Supreme Court, published some thoughts on the judicial confirmation process in 1995. Reviewing Stephen Carter's book The Confirmation Mess in The University of Chicago Law Review, Kagan asserted that prospective jurists should have demonstrated a talent for judging: 'It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee's previous accomplishments evidence an ability not merely to handle but to master the "craft" aspects of being a judge.' While not in my view an 'embarrassment,' Obama's decision to nominate Kagan to the nation's highest bench flunks her own test. If confirmed, Kagan would become the first justice in 38 years to join the Supreme Court without judicial experience."

More substantively, Mark Steyn at NRO's The Corner showed deep concern over what he recognizes from Canada in Kagan (that's troubling):

"For some of us, Elena Kagan is deja vu all over again. Whether or not she belongs on the Supreme Court of the United States, she'd be a shoo-in as successor to Jennifer Lynch, QC, Canada's Chief Censor. Ms Kagan's views on free speech could come straight from any Canadian 'human rights' tribunal hearing: 'Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.'

"'Balancing' is the code word there. Canada's thought police are all about the 'balancing.'"

Steyn linked to two articles: One written by Mark Tapscott in Washington's The Examiner and another from Toronto's Globe and Mail written by Jennifer Lynch, the chief commissioner of the Canadian Human Rights Commission, who defends the government's obligation to limit what people can say in the interest of sheltering others from expressions of hatred and contempt.

That's the nanny state taking its responsibility for nannying citizens-as-children quite literally. Elena Kagan, who is not married and has no children, will soon become mother to us all. Or at least it's likely.

D.C. Innes
D.C. Innes

D.C. is associate professor of politics at The King's College in New York City and co-author of Left, Right, and Christ: Evangelical Faith in Politics (Russell Media). Follow D.C. on Twitter @DCInnes1.


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