Kagan Supreme Court: The arguments for—and against

College News breaks down the arguments about Elena Kagan, President Obama's new nominee for the Supreme Court.

On Sunday, President Barack Obama announced his pick for his second nomination to the Supreme Court: Elena Kagan, the current Solicitor General and former University of Chicago law school lprofessor. If confirmed, Kagan would take the spot of retiring Supreme Court justice John Paul Stevens.

As with Obama’s previous Supreme Court nominee, Sonia Sotomayor, Kagan has already been at the receiving end of some controversy, due to her quotation of a speech given by former Supreme Court justice Thurgood Marshall, the court’s first African-American judge for whom Kagan clerked. In a tribute written to him at the time of his death in 1993, Kagan quoted Marshall’s assertions that the constitution was “defective” as originally crafted and conceived, and that the Supreme Court should serve as “a special solicitude for the despised and the disadvantaged.”

The Hill reports that, in response, Republican National Committee sent out a memo titled “Strong But Respectful” in which they say that come confirmation time, they’ll question if she still agrees with those assertion in a—you guessed it—a strong but respectful manner.

As you might imagine, the prospect of Kagan at the Supreme Court has had both sides of the aisle revving their rhetorical engines. So College News figured we’d start practicing our Kagan exercises and round up the case for—and against—Supreme Court nominee Elena Kagan.

For: Kagan Supreme Court

1. “...the core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct ... I’ve seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly.” [Lawrence Lessig, The Huffington Post]

2. “… Kagan has no obvious paper trail that makes for sound-bite attacks. Her academic articles are ponderous and abstruse, not Fox News fodder. And she has managed to work in both the Obama and Clinton administrations without marking herself indelibly as a liberal. That turns her lack of judicial experience into an asset.” [Emily Bazelon, Slate]

Against: Kagan Supreme Court

1.  “I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill.  But …Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.  In addition to zero judicial experience, she has only a few years of real-world legal experience.” [Ed Whelan, the National Review]

2. “It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court.  Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.  The Obama administration is filled to the brim with exactly such individuals—as is reflected by its actions and policies—and this is just one more to add to the pile. “ [Glenn Greenwald, Salon]

By Jon Graef

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