Kagan Likely to Accessorize the Black Judge's Robe with a Political Hat

Published Wed, Jun 30 2010 2:28 PM

At yesterday's hearings, Elena Kagan dodged several lines of  inquiry questioning whether, given her political background, she will be able to remove her "political hat" and assume a "judge hat."

At one point, Senator Tom Coburn (R-OK) noted probingly, "Elections have consequences. I would expect the President to nominate someone who shares his values.  You've fought for a lot of causes in your life."  Kagan did not hesitate to fire back at him:  "[T]hat [political] hat has not been on for many years. I've had a 25-year career in law; of that time I spent four years in the Clinton White House. The major part of my legal career has been as a scholar and teacher of the law."

However, even in academia, some of Kagan's captured moments of candor show that she doesn't have a problem wearing many hats at once, and frequently used her position as Dean to put on her political hat and advocate her partisan views.  While Dean of Harvard Law School, Kagan spoke at an alumni awards dinner for then-Senator Obama and waxed on about his 2004 speech at the Democratic National Convention:  "He said a few words and the place was mesmerized. You could have heard a pin drop and that's all in part because of these rock star qualities. The eloquence, the magnetism, the great looks, the brilliance."

While moderating a 2005 panel discussion on President George W. Bush's Supreme Court nominee, Harriet Miers, Kagan and the members of the panel mocked Miers' lack of name recognition and questioned her legal qualifications.  She went on to say "we don't know much about [Miers'] views" and quipped, "Honestly, the Republicans have a little bit of reason, you know, to, you know, want to know better who this person is too."  Ironic, considering Kagan has faced much of these same criticisms throughout her confirmation process given that she has less legal experience than any other nominee in that last 50 years and has never tried a case before a jury and she argued her first appellate case merely nine months ago. As Senator Herb Kohl (D-WI) said in his opening statement to Ms. Kagan on Monday, "We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us." And thus far, the hearings have not offered much more insight into her judicial philosophy. (See earlier blog post:  The Kagan Hearings:  Fruits, Vegetables, and a Waste of Our Time.)

In 2007 at the Harvard Law School commencement ceremony, Kagan also used the opportunity to blast Bush administration officials and advisors, naming specifically former Attorney General Alberto Gonzales and former chief of staff Andy Card, regarding the terrorist suspect wiretapping program.  Kagan lauded former Department of Justice official Jack Goldsmith who spoke out against certain aspects of the wiretapping program and criticized the others:  "This is a story, to put it bluntly, of some lawyers who failed to respect the rule of law and of others … who stood up for and vindicated it." 

RNLA Executive Director Michael Thielen mused in a recent article for the RNLA, "Is Obama appointing a political lawyer to the Supreme Court because he knows she will protect his agenda?"  Her willingness to promote the liberal agenda at Harvard shows she may be prone to wearing her political hat with her black robe.

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