Monday, May 10, 2010 10:00 AM
Kagan Has Few Vulnerabilities

(Alex Wong/Getty Images)
Today President Obama is nominating Solicitor General Elena Kagan to the Supreme Court. Here is what National Journal's Stuart Taylor Jr. wrote about Kagan last month when she first emerged as a possible nominee:
Kagan's assets include her outstanding record as a professor and dean at Harvard Law School, where she brought in some conservative professors and calmed the school's politically contentious faculty; her experience as a domestic policy aide in the Clinton White House; her age (only 49); and -- crucially -- her careful avoidance of a paper trail of controversial statements for critics to attack.
"I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade," wrote Tom Goldstein, a leading Supreme Court litigator and the founder of Scotusblog, in a widely read February 23 piece on his website.
The one issue that could slow down Kagan's confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called "a moral injustice of the first order."
Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would -- the Supreme Court held in an 8-0 decision -- have rendered the statute "largely meaningless." This helps to explain the 31 Republican votes against confirming her as solicitor general.
Many liberal critics are unhappy with Kagan's arguments as solicitor general supporting the "state secrets" doctrine, detentions without trial, and other broad Obama claims of executive power to fight terrorism -- some of them similar to the Bush policies that liberals hate. But their angst would be no obstacle to confirmation.


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