May 20, 2010 Since when is Elena Kagan another Thurgood Marshall?
Although President Obama’s Supreme Court nominee Elena Kagan clerked for the late Supreme Court Justice Thurgood Marshall, that hardly makes her another Thurgood Marshall. For instance, as the New York Times reports: "In analyzing why Justice Marshall was adamant about siding with the poor family in the busing fee case, for example, Ms. Kagan explained in her tribute that he ‘allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences, to guide him.’"
In nominating Kagan to the Supreme Court, President Obama said that Thurgood Marshall’s "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today." Former National Lawyer’s Guild president Marjorie Cohn makes a good point that President Obama stretches facts too far to make such an assertion.
Cohn further asserts:
"There are other indications that should give progressives pause as well. During her solicitor general confirmation hearing, Kagan said, ‘The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding…’ But the Constitution is full of affirmative rights — the right to a jury trial, the right to counsel, the right to assemble and petition the government, etc. Does Kagan not understand that decisions made by the Supreme Court give life and meaning to these fundamental rights? Is she willing to interpret those provisions in a way that will preserve individual liberties?
"While Kagan generally thinks the Constitution serves to limit governmental power, she nevertheless buys into the Republican theory that the Executive Branch should be enhanced. In one of her few law review articles, Kagan advocated expansive executive power consistent with a formulation from the Reagan administration. This is reminiscent of the ‘unitary executive’ theory that George W. Bush used to justify grabbing unbridled executive power in his ‘war on terror.’
"As solicitor general, Kagan asserted in a brief that the ‘state secrets privilege’ is grounded in the Constitution. The Obama White House, like the Bush administration, is asserting this privilege to prevent people who the CIA sent to other countries to be tortured and people challenging Bush’s secret spying program from litigating their cases in court."
Elena Kagan likely will turn out to be a better Supreme Court pick than a Republican president would have selected, but I have no excitement about this pick. As I blogged last year after President Obama named Sonia Sotomayor to the Supreme Court, Obama is a great improvement over George Bush II, but I am not holding my breath for him to do any better than Bill Clinton in Clinton’s rather centrist approach, at best, to criminal defendants’ rights, civil liberties, and immigrants’ rights, among other important social justice items. Similarly, just as I expected Bill Clinton to do less damage with federal court appointments than his predecessor, I expect no better from Obama with court nominations than I Clinton’s judicial selections.