13 May 2010
Barring a scandal or other bizarre circumstances between now and the vote to confirm Elena Kagan as the Supreme Court Justice to replace John Paul Stevens, one Texas Tech University political science expert says Kagan’s confirmation appears almost a given.
Nevertheless, the Senate Judiciary hearings should be interesting since she hasn’t been a judge and has no written opinions to study, said Mark McKenzie, assistant professor of political science.
McKenzie is an expert on the Supreme Court and judicial elections.
Trying to gauge Kagan’s views based on her actions as solicitor general could be tricky because she was acting on the behalf of the Obama Administration.
“She has written some law articles for various law review publications, and she has some memos from the Clinton White House regarding her stint as deputy director of the Domestic Policy Council,” he said. “This could possibly surface in the hearings. Former students of hers will probably surface to tell the media what they thought of her teaching during her stints in academia.”
McKenzie said he expects some senators to oppose her confirmation because of the fact she has never been a judge. However, historically, this hasn’t often mattered. President William Howard Taft, for example, was later chosen to become Chief Justice of the Supreme Court.
“The fact that she has never had judicial experience may be brought up by some senators or others, but from a historical perspective this fact is unremarkable,” he said. “Until recent times, Supreme Court justices came from a variety of different areas in the political arena. However, even though Republicans now have enough senators to filibuster, it would be highly unlikely any of the moderate Republicans would agree to a filibuster.”
Kagan is unlikely to change the ideological direction of the court, McKenzie said. Currently the court has five conservatives and four liberals. Justice Stevens is a liberal, and Kagan will be a liberal replacing another liberal. The question, however, is ‘how liberal is she?’
“Thus far, there’s somewhat of an impression that Kagan is not as liberal as Justice Stevens, particularly with respect to the power of the executive branch,” McKenzie said. “There are probably no drawbacks to President Obama if Kagan’s nomination is successful. Undoubtedly, he is hoping that she will uphold his health care legislation when the legal challenge reaches the Supreme Court. My guess is that she will. Since she is replacing another liberal on the court, there really are no “drawbacks” for conservatives, because her nomination will most likely maintain the status quo ideologically.”