Lines of battle over a Kagan confirmation
She has wide experience, but none as a judge. Some liberals might find her too conservative.
Here is how Solicitor General Elena Kagan's path to succeed Supreme Court Justice John Paul Stevens is likely to play out, in terms of the most prominent lines of support for and attack against the nomination.
1. Qualifications; breadth and depth of experience. Kagan has never been a judge. She has spent very little time as an advocate. Her exposure to the judicial process is thus largely academic. On the other hand, she held significant positions in the Clinton administration's domestic policy operation. That gives her real experience in policy-making and the legislative process. Her qualities and success as solicitor general will be debated, but the legal issues are too nuanced to take hold in the public mind. Supporters will focus on the fact that Kagan is uniformly regarded as very intelligent; clearly up to the job. She has held among the law's most prestigious positions: dean of Harvard Law School and solicitor general.
2. Ideology. Conservative opponents obviously will attempt to frame her as extreme, but Kagan has a short track record that makes that almost impossible. It is ironically the left that is most worried. Some inferences come from her professional choices. Kagan clerked for the very liberal Thurgood Marshall. She twice put her academic career on hold to join Democratic administrations. Her public remarks on ideological questions are limited, but uniformly on the left or center, not on the right.
3. Ability to work with conservatives. Kagan was well known for bringing peace to the fractious Harvard Law School faculty and leading the drive to hire high-profile conservatives to balance the faculty. Look for prominent Republicans, including but not limited to Reagan Solicitor General Charles Fried, to support her vocally and rebut claims that she is very liberal. Supporters will point to this quality in particular as creating the prospect that she can move some conservative justices to the left in certain cases.
4. Gays in the military and Don't Ask, Don't Tell. Kagan strongly supported the application to the military of Harvard Law School's long-standing bar to on-campus recruiting by all employers who discriminate against homosexuals. Look for opponents to attempt to describe Kagan's position as antimilitary; supporters will respond with Kagan's public remarks and veterans who are supporters. Opponents will also attempt (and fail) to establish that she undermined the defense of Don't Ask, Don't Tell.
5. Executive power and the war on terror. Some liberals criticize Kagan for supposedly advocating a Bush-like view of presidential power; some conservatives have held fire on that basis. That impression of Kagan will change substantially.
6. Detailed answers to senators' questions. Kagan wrote a scathing article criticizing senators for not requesting, and nominees for not giving, detailed answers to specific questions about specific issues. Kagan will presumably take the approach of all recent nominees and say as little as possible. Look for the article to be oft-quoted by Republicans.
7. Citizens United - the campaign-finance case - and understanding the problems of ordinary Americans, not big companies. This is version 2.0 of "empathy." Look for the administration to attempt to link this theme to Kagan, but struggle. She does not have the personal backstory of Sonia Sotomayor or professional experience in, for example, antipoverty programs. Supporters may turn to programs she fostered at Harvard. The White House cites the Citizens United ruling as the best evidence of the conservative court's pro-business bias. Kagan argued the case for the administration, so there is some link there.
8. Privilege. Kagan served for four years in the Clinton administration, some in the White House counsel's office, and some in the domestic policy shop. Opponents will naturally demand the disclosure of as many of her documents as possible. There will likely be skirmishes over attorney-client and executive privilege, and application of the Presidential Records Act.
9. Diversity. Kagan would be the fourth female justice. The court will have three women for the first time.
10. Who knows? Something almost always emerges. For Sotomayor it was "wise Latina." For Sam Alito it was Concerned Alumni of Princeton. It makes sense to anticipate something for Elena Kagan as well.