First Thoughts on the Kagan Nom

1. I’m alarmed by the precedent that a Democratic nominee for Supreme Court cannot have a record on abortion.  Elena Kagan doesn’t have a record on much in the way of any controversial issues, but neither she nor Justice Sotomayor had any obvious pro-choice skeletons in the closet.
2. which is disturbing because — “skeletons in the closet”??  Abortion is still a legal medical procedure.  The fact that Diane Wood voted consistently to uphold this constitutionally protected right should never have disqualified her, and yet it seems pretty clear that that’s what made her unpalatable.
3. Plus, the nomination confirms what I’ve really wanted to keep denying — that Obama is not really a staunch progressive who believes in bipartisanship, but rather, a staunch moderate who believes… I’m not always sure what.  Being a moderate isn’t always a bad thing, but a SC nomination is one of the most lasting choices a president makes, and if there’s any time to spend political capital and go with a bold pick, this is it.  Obama, most likely, picked Kagan rather than someone like Wood because it’s who he wanted, not because it was a political compromise he felt he had to make.  I find that deeply disappointing.
4. All that said, when it comes to Roe v. Wade, it seems unlikely that Kagan will be the 5th vote against it.  As a colleague observed, “Not to stereotype, but do you know any Jews from the upper west side of Manhattan who aren’t pro-choice?”  I imagine there are some, but odds are against it.  Not sure how that plays out when it comes to other legal issues.
5. The fact that she is not a judge seems like a plus to me in some ways– it’s another way to increase diversity of experience on the court.  And there seems to be no question about her exceptional intellect.  And speaking of diversity — three women on the Court at once!  Cool.
6. I’m hoping it will be a more interesting confirmation process this time around.  Back in 1995, the LA Times reports, Kagan called the confirmation process “a vapid and hollow charade.”

It is “an embarrassment,” she said, that “senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.” Justice Clarence Thomas won confirmation, she said, even “after his substantive testimony had become a national laughingstock.”

Kagan’s views on Thomas notwithstanding… if she sticks to this standard, hopefully we’ll know more about where she stands in a few months.  I am interested in finding out more, and not just about her position on right to privacy.