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

Holder will regret his refusal to obey the Constitution
image 'Flood Wall Street' climate protesters take aim at their corporate allies
image 3 opportunities for better US-India defense ties
image Is Nicolás Maduro Latin America's new man at the United Nations?
AEI on Facebook
Events Calendar
  • 29
    MON
  • 30
    TUE
  • 01
    WED
  • 02
    THU
  • 03
    FRI
Thursday, October 02, 2014 | 9:00 a.m. – 10:30 a.m.
Campbell Brown talks teacher tenure

We welcome you to join us as Brown shares her perspective on the role of the courts in seeking educational justice and advocating for continued reform.

Friday, October 03, 2014 | 12:00 p.m. – 1:00 p.m.
Harnessing the power of markets to tackle global poverty: A conversation with Jacqueline Novogratz

AEI welcomes you to this Philanthropic Freedom Project event, in which Novogratz will describe her work investing in early-stage enterprises, what she has learned at the helm of Acumen, and the role entrepreneurship can play in the fight against global poverty.

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