At Center Court: Can Kagan Be a Consensus Builder?

President Obama calls Supreme Court nominee Elena Kagan a "consensus builder." But can she really end decades of partisan judicial warfare?

By Jeffrey Rosen Thursday, May 13, 2010
    • Chip Somodevilla / Getty Images

    Vice President Joe Biden, President Barack Obama and Solicitor General Elena Kagan walk into the East Room before Obama announced Kagan as his choice to be the nation's 112th Supreme Court justice.

    Here we go again. As soon as President Obama nominated Elena Kagan to the Supreme Court, Senate Democrats predicted an easy confirmation while Republicans hedged their bets. Calling Kagan's background "thin for this position," Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, suggested that the antigovernment sentiments of the Tea Party movement will affect the atmosphere in which Kagan faces the Senate. In a preview of the Republican playbook, Sessions added that Kagan would have to "explain" to the American people why, as dean of Harvard Law School, she briefly barred the military from recruiting through the law school's office of career services and supported a legal dispute over the Pentagon's policy on gays in the military.

    If Republicans were already trying to paint Kagan as too liberal, some Democrats wondered whether she might be too centrist. "Why do the conservatives always get the conservatives but we don't get to get the liberals [on the Supreme Court]," Iowa Democratic Senator Tom Harkin complained to Politico before Kagan was nominated.

    President Obama, however, betrayed no concern about critics on the right and the left. In his nomination announcement on May 10, he seemed to describe Kagan very much as he'd describe himself: as someone who can build bridges between liberals and conservatives. He noted that at every stage of Kagan's career — as legal scholar, Clinton domestic-policy adviser, Harvard Law School dean and Solicitor General — she had earned respect for "her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice [John Paul] Stevens, 'of understanding before disagreeing'; her fair-mindedness and skill as a consensus builder."

    Obama seems to feel that Kagan's inclination to find common ground between liberals and conservatives will equip her to achieve consensus on the Supreme Court, winning over swing Justice Anthony Kennedy and moving the court to the center. Like everyone else who has ever seen Kagan in a legal conversation, I admire her ability to appeal to ideological opponents. (I've known Kagan for years, and my brother-in-law is her deputy in the Solicitor General's office.) Even with the political skills of Ronald Reagan, however, Kagan might have trouble persuading the conservatives on the Roberts Court to accept her — and Obama's — vision of judicial power. While Kagan and Obama want the court to uphold the centerpiece of Obama's domestic agenda, from health care reform to economic reform, conservative activists are determined to persuade the Justices to strike down those landmark federal laws.

    White House aides are straining to argue that Kagan, an Ivy Leaguer from New York City, will represent the values of the real world. But there's no question that she has shown a knack for searching out ideological common ground at every stage of her education and career. She was raised on the Upper West Side of Manhattan. Her mother taught at the selective Hunter College Elementary School, which Kagan attended, and her father, a Yale Law School graduate, represented tenants in rental apartments that were being converted to co-ops. After attending Princeton and Oxford, Kagan went to Harvard Law School. On the Harvard Law Review , Kagan became known not just for her fierce intellect but also for her ability to get along with classmates who held widely different political perspectives. "She could map out even the longest, most abstruse articles like some amazing cartographer," says Carol Steiker, a professor at Harvard Law and a fellow Law Review editor of Kagan's. "This degree of analytical brilliance is not often joined by an equally high degree of interpersonal skill, but Elena is a happy exception."

    Kagan went on to clerk for Judge Abner Mikva and Justice Thurgood Marshall (who called her Shorty) and then began her teaching career at the University of Chicago Law School. In 1995 she wrote an academic book review that will be cited endlessly in her confirmation hearings, calling the confirmation process a "vapid and hollow charade" because Senators don't press Supreme Court nominees on their views. But Kagan also included a shout-out to someone who may soon be her sparring partner on the court, Justice Antonin Scalia. Praising Scalia for having "challenged and amused a decade's worth of law professors," Kagan lauded him for provoking debate with the "quality and intelligence (even if ultimate wrong-headedness)" of his work.

    In the Clinton White House, where President Clinton used her as a reference book on constitutional issues, she was promoted from the counsel's office to deputy chief of domestic policy because of her cool in negotiations and political savvy. Once again reaching out to conservatives, for example, Kagan persuaded John McCain and other Senate Republicans to give the Food and Drug Administration authority to regulate tobacco.

    Kagan returned to Harvard Law as a professor and then as dean, where she calmed the ideological divisions of a famously polarized faculty. She hired noted conservative scholars — like Jack Goldsmith, the former head of George W. Bush's Office of Legal Counsel who broke with the Administration's terrorism policies — over strenuous liberal objections, and she persuaded the faculty unanimously to reform the grading system and curriculum.

    Obama hopes that on the Supreme Court Kagan will build the same consensus between liberals and conservatives that she achieved in the Clinton White House and at Harvard. But you can't build judicial consensus without having a judicial vision to build it around.

    So what, exactly, does Kagan believe? Her lack of a track record (she has never been a judge, and she has written relatively few articles for so lengthy an academic career) has earned her critics on the left and right who view her as a cipher, but her judicial philosophy can, in fact, be gleaned from her writings. Like Presidents Clinton and Obama, she believes in judicial restraint, or the view that courts should be hesitant to strike down laws and that political change should come not from judges but from Congress and the President. Obama made clear that he shares this constitutional vision when, in comments to reporters at the end of April, he challenged liberal orthodoxy by suggesting that liberal activist judges in the '60s and '70s had been "guilty" of overreaching with a judicial approach that "ignored the will of Congress, ignored democratic processes and tried to impose judicial solutions on problems instead of letting the process work itself through politically." Today, Obama suggested, conservatives are making the same error by embracing judicial activism: as soon as conservative Senators such as Mitch McConnell and Orrin Hatch lost the debates over campaign finance and health care, for example, they rushed to support lawsuits challenging the reforms as unconstitutional.

    Kagan's paper trail, although thin, suggests that she would embrace the kind of liberal judicial restraint that Obama recently praised. Essentially, Kagan and Obama believe that Congress and the President, when they work together, should be given broad power to regulate areas ranging from the economy to national security. Kagan is a scholar of the regulatory process, and in her most important academic article, a 2001 piece in the Harvard Law Review , she argued that the President should be able to use the federal administrative agencies to pursue a progressive policy agenda — unless Congress explicitly says otherwise.

    Would Justice Kagan be successful in persuading her conservative colleagues on the Supreme Court to embrace this vision of liberal judicial restraint? The answer largely turns on one man: the swing Justice, Kennedy. Although Kagan might be to the right of Justice Sonia Sotomayor on some questions involving executive power, she could be more effective than Sotomayor at moving the court as a whole to the left because her interpersonal and management skills make her more likely to win over Kennedy. On the other hand, Kennedy, unfortunately for Kagan, is the most activist Justice on the Supreme Court. From 1995 to 2000, he voted to strike down more state and federal laws combined than any other Justice.

    If Kagan is unable to win over Justice Kennedy, she won't be the first public official to go to Washington from Harvard Law School pledging to overturn partisan divisions and represent the vital center, only to be bitterly disappointed. Both Barack Obama and Chief Justice John Roberts began their government service by articulating a similar vision of bipartisan unanimity, but both have been unable to produce consensus in the most hotly contested disputes.

    What would Kagan do if she were to be similarly frustrated? She might become a more passionate and partisan liberal warrior, inheriting Justice Stevens' mantle as the leader of the liberal wing on the court and making her current liberal critics look shortsighted. For now, however, conservative activists fear that Kagan will be too liberal, and liberal activists fear that she will be too conservative — which seems exactly where President Obama wants Kagan to be.

    Rosen, a law professor at George Washington University, is the author of The Supreme Court: The Personalities and Rivalries That Defined America.