Ken Klukowski: The Biggest Question About Elena Kagan
ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing October 4, 2010, on FoxNEWS.com.
Today marks the first day on the bench for Justice Elena Kagan, the Supreme Court’s junior justice. Kagan replaces Justice John Paul Stevens, who was one of the longest-serving justices in American history, sitting on the Court since Gerald Ford appointed him in 1975. Legal experts will be watching carefully, as it’s been decades since someone has ascended to the High Court with so many questions regarding her views.
People sometimes point to Justice David Souter and a similar black box, who was appointed to the Supreme Court after being a judge on the First Circuit federal appeals court for only a few months. But that’s not accurate, as Souter had served as a justice on the New Hampshire Supreme Court for seven years prior to his federal appointment, and served as a lower-court judge before that.
You have to go back to the appointment of William Rehnquist, who was nominated for SCOTUS in 1971 (confirmed in January 1972), to find someone appointed to our highest court with no judicial experience. At age 47, Rehnquist was head of the Office of Legal Counsel, one of the two elite legal teams in the U.S. government. The head of OLC is the top legal adviser to the president and the attorney general, and Rehnquist was considered nothing short of brilliant as a legal scholar.
Rehnquist’s appointment was the foreseeable result from the outset of his extremely-promising career. He earned his undergrad from Stanford, two master’s degrees from Stanford and Harvard, and a law degree from Stanford. Rehnquist then clerked for Justice Robert Jackson on the Supreme Court.
Justice Kagan’s career parallels Rehnquist’s in many ways. She received her undergraduate degree from Princeton, then a master’s degree from Oxford, then her law degree from Harvard, where she was a law review editor. She clerked for a judge on the U.S. Court of Appeals for the D.C. Circuit (the most prestigious federal appellate court), and then Justice Thurgood Marshall on the Supreme Court. Years later, she served as the head of the Office of the Solicitor General, which is the other elite legal team for the federal government. And Kagan was sworn in at the Supreme Court at age 50.
Although there are differences between their careers–Rehnquist had a career practicing law while Kagan worked in academia–both of these individuals had careers where a knowledgeable observer would say, “I wouldn’t be surprised if that person ends up on the Supreme Court.” Both were active in politics in a way that brought them to the attention of a president–being brilliant lawyers who were also loyal members of their respective political parties, and both would stand out as having a judicial philosophy that would move the Court in a particular direction. (President Nixon wanted a reliable conservative vote, and President Obama wants a reliable liberal vote.)
The biggest question outstanding about Justice Kagan is how far to the left she will be on the Court. She’s well-spoken and pleasant, and her carefully-chosen words made her sound like something of a moderate liberal. However, her pedigree is that of a very liberal legal thinker, possibly even to the left of Justice Stevens, whom she replaces.
It’s usually impossible to tell from the questions someone asks during oral arguments which way a justice will vote on a case. (Last year Justices Kennedy and Sotomayor both asked questions that led me at the time to think they were going to vote a particular way on a case, but ended up going the other way.) So we’re probably not going to know until early next year what kind of jurist Elena Kagan truly is.
But we’ll find out. There are cases before the Court this year involving religious liberty, immigration, free speech, and a host of other hot-button issues.
In her most recent job, many of those cases were in the office of Solicitor General Kagan before she went to the Court. Many will argue that she should recuse herself from all of these cases. But federal law only requires recusal in limited circumstances (such as if the judge has a financial stake in the case), so it will ultimately be Justice Kagan’s choice.
President Obama is taking a chance by appointing a justice who could spend much of her first year on the sidelines. It could result in a number of 4 to 4 ties, in which case the lower-court decisions stand. One reason Obama may be doing this is that the huge cases involving his agenda–such as those involving Obamacare and same-sex marriage–won’t get to the Court for at least another year, and Kagan will be fully in the game by that time. The other is that Obama’s looking toward the long-term, and is willing to lose a fight or two this year for the sake of willing maybe dozens of fights over the coming decades.
If she does recuse herself from these controversial cases, it might be a year before we have a clear picture of her. But if she decides to sit on those cases there’s nothing anyone can do to force her off, and we’d get our picture of her much sooner.
Either way, though, America will find out what we have in our newest justice. Elena Kagan was appointed to the Supreme Court while still young enough that she could conceivably serve for thirty or forty years. So one way or another, a new era begins today.