Stanford’s Take on Kagan

On May 10, President Obama nominated Solicitor General and former Harvard Law School Dean Elena Kagan as the 112th justice for the United States Supreme Court. If confirmed, Kagan will be the youngest and the third female justice on the Court. As she awaits her confirmation, there is a multitude of opinions about her going about among intellectual communities, and Stanford is no exception.

Elena Kagan is well-known for her time as Dean of the Harvard Law School. She was popular for being open-minded and recognizing the lack of conservative professors, and worked to attract some of the top academic and conservative legal minds in the country to revive the then-suffering law school.

Kagan’s academic work is also praised for its recognition of merits on both sides of an argument. Professor Michael McConnell, Richard and Mallery Frances Professor of Law at the Stanford Law School and former colleague of Elena Kagan during her time at the University of Chicago Law School, believes that this is one of her best traits as a prospective justice for the Supreme Court.

Professor McConnell, who recently argued CLS v. Martinez before the Supreme Court, remarks on one of Kagan’s academic works—a support of Justice Antonin Scalia’s majority opinion in the case of R.A.V. v. City of St. Paul—stating that Kagan is not afraid to take the right side even if it is not in line with her party’s philosophy.

“She’s not a party-liner and has the guts to take on issues where she departs from her usual political allies and takes a stand even when it seems to be more associated with the other side of the spectrum,” says Professor McConnell.

Kagan was popular as an academic not only because of her willingness to reach out to conservatives but also because she was not afraid to take unpopular stances on many issues. In her capacity as Solicitor General, Kagan defended the Bipartisan Campaign Reform Act, sponsored by Senators McCain and Feingold, abstaining from making the legal argument that the government has the right to restrict speech of some speakers who would otherwise drown out the voice of other speakers. This was, however, the argument that Democrats and President Obama himself made against the act. As Professor McConnell states, Kagan “rather conspicuously declined to make the argument against campaign speech that was supported by not just her party but also her boss- this says that she is principled enough not to make an argument she thinks is wrong, even when it is pressed upon her by her president.”

Many have raised concerns that Kagan’s lack of experience as a judge will contribute to the detriment of the Court. However, Professor McConnell believes that while “judicial experience is a positive fact, it is not indispensible.” He points out that many influential justices, such as Chief Justices Earl Warren and William Rehnquist, had no judicial experience before being appointed to the Court.

Eric Osborne, a third-year Stanford Law student and President of the Graduate Student Council (GSC) believes that this lacking is not only a non-issue, but is actually desirable. Both Professor McConnell and Osborne agree, however, that her academic background adds nothing to the Court since several of the justices including Ruth Bader Ginsburg, a former professor at Rutgers and Columbia, have large academic experience as well.

Ms. Kagan has always treaded carefully in her academic works, making sure not to offend any party. The concern is that such an approach may impede the manifestation of her real and learned legal opinion. However, as explained by Alan Sykes, James and Patricia Kowal Professor of Law at Stanford and another colleague of Ms. Kagan’s from the University of Chicago Law School, such constraints will not hold her back when she is at the Supreme Court, where she no longer has to be fearful of anyone’s reactions to her opinions.

With Elena Kagan coming in and Justice Jean Paul Stevens going out, there will no longer be any Protestants on the Court. However, to Professor Sykes, this is not a major concern. He states that although some people may feel underrepresented, this change in dynamic may possibly have no effect on the Court at all.

Osborne, who had formerly gone to seminary, believes that this cannot be to any detriment of the court. Catholicism and Judaism, the only two religions that would be represented by the court if Kagan is confirmed, he says, are more legally-driven religions and this recognition of religion and discipline gained thereby will prevent any harm to the court.

The biggest hope from Ms. Kagan for many is that she will revive the “Middle” in the Court. Given her willingness to listen to all parties and support for many opinions of parties other than her own, Professor McConnell remarks, “people on the far left may not be pleased, but for many of us, the ideological extremes are not what we want.” With the most left-leaning justice on the Supreme Court now exiting, many are hopeful that the Supreme Court will become a less partisan and more holistic institution where all opinions and arguments are given equal weight.

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