Between a Rock and a Hard Place


It’s a pretty safe bet that the Democratic-ruled Senate will confirm Solicitor General Elena Kagan, President Obama’s Supreme Court nominee, by about Aug. 6, with over 60 votes. But that’s not to deny that many conservatives–and some liberals–will raise passionate complaints that the 50-year-old Kagan is unfit to be a justice. Indeed, they’ve been attacking her for as long as she has been the consensus front-runner for the nomination.

Conservatives and others have pounded especially hard on her efforts to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the exclusion of gays from the military.

Few if any critics doubt that Kagan is extraordinarily intelligent and accomplished, or that she demonstrated great skill as a consensus-builder as dean of Harvard Law School, where she calmed the troubled ideological waters and won the admiration of conservative and liberal colleagues alike, from 2003 through 2008. But critics do claim that Kagan–who spent most of her career as a law professor and Clinton White House official, with very little courtroom experience before becoming Solicitor General–has less experience relevant to being a justice than any nominee in decades. Indeed, unlike all nine current justices, she has no judicial experience at all.

The New York-born Kagan would increase the Court’s domination by establishmentarians who attended Harvard and Yale law schools–six and three justices, respectively–and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.

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