Kagan's lack of a record
One of the difficulties in assessing Kagan's judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That's not only because she's never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama's Solicitor General, where (like any lawyer) she was obligated to defend the administration's policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: "it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution."
As I've previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination. That's true for two reasons:
First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President's party supports? As Goldstein wrote of Kagan:
Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.
Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?
This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O'Connor and instead choose Sam Alito. As Frum put it on PBS during the fight over Miers:
Stakes are so enormous in this seat. This is something, as Bill Kristol said, the conservatives have worked for, for a long time. . . . I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . . Part of what isn't good enough is for the president to say -- although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think -- "I have a secret, I know something and nobody else does. And I'm going to go with my personal knowledge."
Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.
[It's ironic that the anti-Miers case was grounded in conservatives' refusal to place too much faith and trust in their President's judgment. Can anyone envision Democrats mounting a serious and sustained campaign against Obama's Supreme Court nominee of the type mounted against Bush by conservatives, whom progressives like to accuse of blind leader/party loyalty?]
