Conservatives are up in arms again over President Barack Obama’s nomination of Elena Kagan to the Supreme Court. We’ve heard accusations leveled at Kagan of radical leftist leanings, a lack of non-academic experience, an anti-military stance, and homosexuality. Fear-based rhetoric such as this is counter-productive for the GOP in two ways. First, it widens the schism between left and right. Second, through the radicalization of Kagan’s image, the GOP might inhibit the nomination of a centrist, pragmatic woman opposed to same-sex marriage.
Accusing Kagan of being an academic with too little judicial experience is not entirely transparent, although Kagan does indeed have little experience with a gavel. However, her academic experience should not be spun as a negative aspect. Currently, every other Supreme Court justice, regardless of the party that nominated them, has attended Chicago, Harvard, Columbia, or Yale. With this in mind, Kagan’s academic history should not be seen as an obstacle, but in fact a shining gold star on her resume. By attacking academia, the conservative pundits are alienating the very institution that has made America different and exceptional: our education system.
By mentioning Kagan’s business relationship with Cass Sunstein, my esteemed counterpart means to connect Kagan with the radical left wing. Yet if we look more deeply into her time at Harvard Law, we find that Kagan supported the controversial hiring of Jack Goldsmith, a key player in constructing the Bush administration’s interrogation policy. Kagan is clearly able to see both sides of the issues, and is open to the free flow of ideas even if they do not mesh completely with her own. This is a hallmark of the cautious pragmatism of which Kagan has been accurately attributed by less sensational political pundits.
The greatest legitimate obstacle to her confirmation is her very real lack of actual judicial experience. This obstacle is not insurmountable. Kagan clerked for Supreme Court Justice Thurgood Marshall for a short time in 1988, but in truth, the majority of her professional career has been in academia. However, Kagan has significant experience with legal issues as an academic.
Many right wing pundits have chosen to focus solely on Kagan’s decision to prevent military recruiters from coming to Harvard. They have extrapolated this to show Kagan as a man-hating, anti-military radical. The issue here is that Kagan’s decision to prevent military recruiters from being active on campus stems from Harvard’s anti-discriminatory policy towards gays. The military’s “don’t ask, don’t tell” policy clearly violates Harvard’s policy. However, Harvard’s policy is enforced by other potential recruiting entities and is widely used in America’s law schools.
Kagan has been labeled many things by the conservative pundits, but it remains to be seen what the Senate will decide through the hearings. Either the Senate will recognize Kagan’s centrist, pragmatic leaning, or it will focus on sensationalized aspects of her character. In 1995, Kagan wrote that Senators had an obligation to ask Supreme Court nominees probing questions about their ideals, and that nominees should answer them. It will be interesting to see how well she is able to follow her own advice.