A Shrewd Choice
Letter to the Editor

President Obama's nomination of Elena Kagan to serve as the next Supreme Court Justice is no surprise to many. By most accounts, she is likely to be an effective advocate on the Court. For those in favor of the Court's steady erosion of the constraints on government power enshrined in our written Constitution, her nomination should be welcome. For those opposed, her nomination provides a call to arms to defend the principles of limited government.

While she would be only one of nine Justices, Kagan's capacity to influence the direction of the Court may be significant. As many have observed in recent days, she has a strong intellect--an asset in attempting to influence colleagues on a Court that is noted for its intellectual firepower. In order to shape the direction of the Court, a Justice must possess the ability to craft arguments that are persuasive to the other members. Kagan appears to have the potential to excel in this area.

This same record and her apparent openness to those who hold more conservative views are likely to place her in a position of influence on the Court.

Kagan's experience in the Clinton White House and as a Dean of Harvard Law School are another advantage. In these positions, she honed political skills that facilitated her meteoric rise from law professor to Supreme Court nominee. As a result, even some prominent conservatives such as former Solicitors General Charles Fried, Ted Olson, and Ken Starr supported her nomination as Solicitor General. Again, these are skills that would likely magnify her presence on the Court.

Kagan's age is also significant. At 50, Kagan could expect to serve decades on the Court. With increased tenure comes the potential for increased influence. As with Justice Stevens, Kagan's stature on the Court would likely grow over time.

Finally, Kagan's limited paper trail provides an air of neutrality. Already, some on both the left and the right have attacked her as overly "conservative" or "liberal." While it is likely that those on the left have little to worry about, the fact that such debate exists has allowed advocates of her nomination to paint her as a "moderate" who will serve as a neutral arbiter. The Obama administration has taken up this theme, urging a swift confirmation. This same record and her apparent openness to those who hold more conservative views are likely to place her in a position of influence on the Court.

In many ways, Kagan's nomination parallels that of Chief Justice Roberts. Like Chief Justice Roberts, she has won respect in many quarters. While she lacks the practical experience Chief Justice Roberts obtained over decades of private practice as one of the nation's preeminent Supreme Court and appellate advocates, she may possess many of the same talents, contributing to an ability to advocate positions that move the Court marginally in the direction she favors. For the Obama administration, her nomination is likely to prove a shrewd one. The question for Republicans is whether they can mount a strong opposition.

Douglas Smith is an adjunct scholar at AEI.

Photo Credit: Brand X Pictures

Also Visit
AEIdeas Blog The American Magazine

What's new on AEI

Making Ryan's tax plan smarter
image The teacher evaluation confronts the future
image How to reform the US immigration system
image Inversion hysteria
AEI on Facebook
Events Calendar
  • 01
    MON
  • 02
    TUE
  • 03
    WED
  • 04
    THU
  • 05
    FRI
Wednesday, September 03, 2014 | 9:00 a.m. – 10:30 a.m.
From anarchy to Augustus: Lessons on dealing with disorder, from Rome’s first emperor

We invite you to join us for two panel discussions on how Augustus created order from chaos 2,000 years ago, and what makes for durable domestic and international political systems in the 21st century.

Wednesday, September 03, 2014 | 12:00 p.m. – 1:30 p.m.
Multiple choice: Expanding opportunity through innovation in K–12 education

Please join us for a book launch event and panel discussion about how a marketplace of education options can help today's students succeed in tomorrow's economy. Attendees will receive a complimentary copy of the featured book.

Thursday, September 04, 2014 | 12:00 p.m. – 1:30 p.m.
How conservatives can save the safety net

Please join us for a luncheon event in which our panel will discuss what conservatives can learn from how liberals talk and think about the safety net and where free-market economics, federalism, and social responsibility intersect to lift people out of poverty.

No events scheduled this day.
No events scheduled today.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.