Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.
There is plenty of material to support that claim — and also some material that cuts against it — in the tens of thousands of pages of documents involving Kagan’s work in the Clinton White House from 1995 to 1999 that are being released in batches.
And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had — before taking the bench — been the most accomplished lawyer of the 20th century.
Not to mention Kagan’s efforts — much-decried by Republicans — to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the law excluding gays from the military.
Still, Kagan’s nomination — unlike last year’s nomination of then-Judge Sonia Sotomayor — has been received with good will bordering on enthusiasm by some leading conservative academics.
Part of the reason is that Kagan’s brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.
But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.