That Supreme Court nominee Elena Kagan has no previous experience as a judge doesn’t mean she’s unqualified or unfit for the lifetime appointment.
There are plenty of great American legal minds — fair, principled, critical thinkers with a vast knowledge of precedent — who have never donned a black robe. By many accounts, Ms. Kagan is one of them. Only 50 years old, Ms. Kagan already has served as dean of Harvard’s Law School and worked in the Clinton and Obama administrations, currently holding the title of solicitor general.
What concerns many people (especially Republicans) about the hole in Ms. Kagan’s resume is the lack of public legal writing as a result of it. It certainly would be easier to get a handle on her core constitutional philosophies and political leanings if she had a body of rulings available for anyone to read. They would provide a preview of the positions she might take as a Supreme Court justice.
A few items in Ms. Kagan’s background are cause for concern: her attempts to ban military recruiters from Harvard’s campus; her defense of the McCain-Feingold campaign-finance law before the high court, arguing that the federal government had the authority to ban books prior to an election; her support of the ideals of one of her mentors, the late Justice Thurgood Marshall, who thought the court should put the interests of the downtrodden over the rule of law.
Indeed, because President Obama has publicly stated his preference for justices with “empathy,” many freedom-minded Americans are concerned Ms. Kagan might make decisions based on desired outcomes, not the limited government powers outlined in the Constitution.
As we’ve said before, the president should enjoy wide latitude in nominating federal judges and justices, and the Senate should, absent a glaring lack of qualifications, give them a fair vote.
But it is safe to say that given the president’s passion for redistributing wealth and exerting more and more federal control over our economy and our lives, he would not tap to serve on the court a “centrist,” as some of Ms. Kagan’s defenders have called her.
Ms. Kagan should be subject to thorough questioning during her confirmation hearings this summer. Does she believe the Constitution means what it says, or does she consider it an antiquated document that doesn’t apply to a society our founders couldn’t possibly have imagined more than two centuries ago?
Her answers to such questions will determine whether she deserves wide Senate support.