The nomination of Elena Kagan, the 50-year-old solicitor general, deserves a much closer look when her Senate confirmation hearings begin June 28. Americans, particularly African Americans, cannot allow our judgment of her slim record be clouded by a knee-jerk desire to see historic President Barack Obama do well.
Kagan’s record includes questionable hiring practices while dean of Harvard Law School, where she reportedly recruited conservative professors while few women and minorities were hired. Even her touted record of bolstering minority student enrollment during her tenure has been challenged.
Her politically expedient stance not to fight restrictions on late term abortions during the Clinton administration as well as her appearance of support for executive power over individual rights should give us pause. Criticism surrounding her reported isolation in the elitist circles of Harvard Square, Hyde Park and Washington raise doubts about her ability to provide justice “for ordinary people,” as the president had sought.
Although my longtime friend, Harvard professor Charles Ogletree, points out that Kagan chose to serve as the Charles Hamilton Houston chair at Harvard, this is a symbolic gesture. More substantial is her clerkship with venerable Supreme Court Justice Thurgood Marshall.
Not only is Kagan’s inexperience as a judge troubling, more curious is her lack of a judicial paper trail to vet properly and fairly. The combination – inexperience and uncertainty – are too big a gamble for a lifelong appointment of such a young justice to the highest court in the land. This is a seminal appointment that cannot be reversed.
Each time the presidential campaign season rolls around, the Democrats scare the voters with the specter of an ultraconservative court should a Republican candidate win. President Obama was voted into office in part by some who want to tip the scales of justice back to balance on the presently right leaning Supreme Court bench.
The NAACP and other leading civil rights organizations originally preferred that the first African-American president nominate an African-American woman from a pool of qualified candidates to add much needed diversity on the current right-leaning Supreme Court bench. But the NAACP and the National Action Network, under the leadership of the Rev. Al Sharpton, were too quick to capitulate and throw their support behind the Kagan nomination, which appears designed for easy confirmation with conservatives.
Indeed, progressives and liberals are voicing their discontent, saying it would be a shame if the court ends up being more right of center after an Obama administration than before he took office. This line of thinking begs the question of whether the Republicans and conservatives are window dressing with their lukewarm opposition of a nominee they have previously lauded and may have picked themselves.
The general consensus is that Kagan is no firebrand liberal to counter conservative Justice Antonin Scalia, nor an intellectual heavyweight to counter Justice John G. Roberts. In fact, she reportedly has an affinity for members of the conservative Federalist Society, whose members now dominate the Supreme Court. She has praised Justice Scalia, who, in return, recently stated that he is glad that Kagan is not a judge.?
The nomination of unknown and untested Elena Kagan raises too many questions as to whether this Democratic president will make good on his and his party’s promise for a nominee who has a demonstrative commitment to civil rights and equal justice for all to succeed retiring liberal Justice John Paul Stevens.
Adrienne T. Washington is a D.C.-based political commentator and journalism professor.