The President's Interesting Supreme Court Choice

To virtually no one's surprise, the President has nominated the present Solicitor General of the United States, Elena Kagan, to the Supreme Court seat of outgoing Justice John Paul Stevens.

Given the composition of the Senate, the odds overwhelmingly favor Ms. Kagan's confirmation, despite her total lack of judicial experience. Ms. Kagan has plenty of impressive credentials -- she is the former Dean of the Harvard Law School, where she was also a professor of law. She has also been a professor at the University of Chicago Law School, and former Associate White House Counsel under President Clinton. But the lack of real judicial experience, much less the lack of non-academic, non private sector experience, are weaknesses in her resume that will no doubt draw some criticism.

I think, however, that Ms. Kagan's real vulnerability will turn out not to be her resume, but her tenure as Dean of Harvard Law School. In her capacity as Dean, Ms. Kagan barred US military recruiters from the Harvard Law campus, apparently because of the military's "don't ask, don't tell" policy as to homosexuals.

Ms. Kagan's views on this subject are right in line with elite opinion in most of academia, the media and the bar, but probably not with the American public, which supports the military; and is likely to weigh barring military recruiters from Harvard higher than misgivings about unfairness to homosexuals. At any rate, Ms. Kagan's reluctance to accept recruiters on her campus will reinforce flyover country's doubts about this administration, its choices and the worldview of our present political elite. For that reason, Obama's political wisdom in making this appointment, in an election year in which his party, is (to put it mildly) in a corner, is questionable.

However, without more, Ms. Kagan is likely to be confirmed -- the Democrats simply have too large a majority in the Senate for the appointment to be blocked. Moreover, the appointment is not necessarily vital to balance on the Court, Ms. Kagan replaces Justice Stevens: the nomination trades liberal for liberal. Unless the case for Kagan completely disintegrates, there is not necessarily a reason for Republicans to pull out all the stops, this time. Too many Democrats would have to be alienated from the choice. Still, Ms. Kagan's current position is a bad omen -- the last Solicitor General to be nominated to the US Supreme Court was Robert Bork.