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Kagan and the Court

Elena Kagan's new office?

Supreme Court nominee Elena Kagan began the arduous process of Senate confirmation yesterday. On May 10, President Obama nominated Ms. Kagan to the High Court. As potentially the fourth female and eighth Jewish justice in the 221 year history of the Court, Ms. Kagan is already a historic appointment. Currently, as the United States Solicitor General, Ms. Kagan is arguing cases in front of her future colleagues. With an impressive resume – Princeton, Harvard Law, Dean of Harvard Law Review, President Clinton’s White House – Ms. Kagan seems like an ideal choice to help craft the law of the land. There is, however, one tiny detail that has been, and will be, drawn out during the confirmation hearings: Ms. Kagan has never, at any level of the judicial system, sat on the bench.

As President Obama’s second Supreme Court nominee in the last year, we can clearly see a trend developing in the Administration’s ideal judicial personality. While Justice Sonia Sotomayor had a discernible judicial record at the time of her nomination, she was known in legal circles as a free thinker who used her personal life experiences, understanding of the average American and intuition to help guide her decisions. What we know of Ms. Kagan’s legal views almost certainly point to her being of the same mold as Justice Sotomayor. While the fact that Elena Kagan has never sat as a judge may be a “red flag” for some, history completely nullifies this argument against her nomination. In fact, of the 111 Justices in the history of the institution, 40 have never had any judicial experience before ascending to the Court.

Today is the second day of the Senate Judiciary hearing in which Ms. Kagan will be extensively questioned on every conceivable topic. The first day was exceedingly uneventful. Other than Ms. Kagan promising a “modest” tact if confirmed, Senators spent most of the day decrying the current Court rather than grilling Ms. Kagan on any subject. The overall expectation is that she will likely endure a relatively smooth process. There will, of course, be tough questions. For example, Ms. Kagan is an ardent admirer and supporter of the Israeli judge Aharon Barak. Mr. Barak, who advocates for a stronger Israeli judiciary, has become an enemy of the conservative base in America that has such strong ties to Israel’s establishment. For this reason, Ms. Kagan is sure to answer a myriad of questions on the subject.

We will see how the process progresses. If Elena Kagan does end up sitting for the Court, we will see a new breed of Associate Justice established before our eyes. Two justices, within a year, that use real life experience rather than that accrued at law school, to power their judicial oversight. We’ve heard enough about the Court and its Ivy league leanings. Its time we look towards the Obama Administration’s idea of a new kind of High Court Justice and see if it, in fact, changes the way the Court does business.

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