It's Kagan!

It is not a great surprise to any U.S. Court Watcher that President Obama selected Elana Kagan as his nominee for the Stevens vacancy on the Supreme Court.


Prior to her current position as U.S. Solicitor General, Kagan served as the Dean at Harvard Law & earlier, as a law professor at the University of Chicago. She has never been a judge.


I have three thoughts on this. Ok, maybe four:

1) I am disappointed Obama did not go with a clear ideological liberal like Diane Wood. While Republican presidents tend to choose unwavering conservatives for SCOTUS, Democratic presidents prefer middle-of-the-road nominees. This phenomena can work to sway the Court even further to the Right.

2) Kagan's nomination is yet another indication that President Obama is a moderate. If you look at his actions during the course of his presidency, it is clear that he is most definitely not the most socialist, liberal, radical Prez ever. In fact, his stance on equality, disarmament, executive power, etc, is uncannily ideologically aligned with Reagan--a Republican. Kagan is a strong believer in expanding executive power & this surely appeals to Obama.

3) It doesn't concern me that Kagan has never been a judge before. In the past, many non-judges were nominated to the Supreme Court & performed competency. I think, so long as a nominee has a legal education, it is not necessary to have past experience as a judge--although, hopefully, such experience would give us greater insight into her political leanings.

3) Kagan has written arguments in favour of curtailing certain Constitutional freedoms. She proposes that the First Amendment, for instance, be modified to reflect the nation's values on "moral" speech. Now, we already have this balancing of constitutional rights in Canada through Section 1 of The Charter. Canada's Section 1 guarantees all enumerated constitutional rights provided that these freedoms are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This balancing has worked pretty well in Canada, in my opinion. However, I note that the Constitution of the United States sets out no such limitations. Tacking them on through judicial review is problematic to me. It would be a clear case of The Court stepping into a legislative role. It would be judicial activism at its worst.


I imagine that any Obama nominee will face a tough Senate hearing, as I have noted in other blog posts. However, Kagan is pretty well regarded by most Republican & Democratic Senators alike. Unless she really blows it, she will most likely be confirmed by the end of the summer.