Some Problems with Elena Kagan

The nomination of Elena Kagan is obviously driving nearly everyone crazy. The new centrism is apparently found when no one — left, right or shrinking center — is enthusiastic. The conventional wisdom (which is a phrase that is oxymoronic) holds that she will be easily confirmed because she is smart, doesn't have an extensive paper trail and plays well with others. All this may be true.

However there are issues — some legitimate and some ridiculous — that may cause problems both in her confirmation and more likely as a Justice. Both left and right are troubled by a lack of knowledge about her core beliefs and principles. We cannot tell what she believes from how she advocated for her client, the Obama Administration. We don't know if her position on giving second class access to the military recruiters at Harvard Law was based on her belief or simply carrying out her understanding of Harvard's pre-existing policy guideline.

We don't know if she really believes what she wrote indicating that free speech can be limited if the government's intent is benign. A horrifying concept since almost all bad things are done with sincerity. We don't know if her holding that the battlefield of the war on terror is global, and therefore we can pick up combatants without any process what so ever, is sincere or just advocacy.

Two more troubling issues — one liberal and one conservative — that need examination. Her hiring record at Harvard Law was very short on women and minorities (as Earl pointed out). Also, as a member of the administration can she be fair and objective and separate herself from a career in Democratic politics and policy? Even though this would represent my politics, I am not certain that I want Supreme Court Justices coming out of the political policy shop. Finally, if confirmed, would she have to (or should she) recuse herself from issues close to this White House?
©2010 Jonathan Dobrer
www.Dobrer.com