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A Supreme Choice

A Commentary By Susan Estrich

Wednesday, May 12, 2010

Elena Kagan is not a surprising choice for the United States Supreme Court, but she is a very smart and deserving one. She is smart and honorable, a woman of character and integrity. And perhaps most important of all, in these times, she will be very hard to oppose.

I have to laugh when I hear conservatives complain that she is not qualified to serve on the court. The former dean of Harvard Law School? The current solicitor general of the United States? Sorry, my friends, but that dog don't hunt.

Then there's the argument that she's too liberal, the "judicial activist" routine. A judicial activist, I've come to conclude, is someone who goes out on the line to disagree with you. Liberals think defenders of the Second Amendment are judicial activists. Conservatives think the same of defenders of the First Amendment. The truth is, you can't interpret the Constitution without being an activist. You'd have nothing to say.

Pretending that the words of the First Amendment tell you whether images of dogs being crushed can be sold online, or that the words of the Second Amendment tell you how far a state can go in limiting the possession of certain weapons, is just plain absurd. It's what nominees say when they're going through the modern charade called confirmation hearings. But no serious legal scholar, liberal or conservative, thinks that all a justice has to do is call balls and strikes. That's just what the smart ones say to get confirmed. If Judge Bork had been equally disingenuous, he'd be Justice Bork. Fool me once…

As for where Kagan actually stands on the ideological spectrum, my guess is that she's not as far left as liberals would like and not as far right as conservatives would hope -- which is to say she's highly confirmable.

In the rarified world of legal academia, she'd almost certainly be counted as a moderate, not even close to a "lefty." (But that may be scant comfort, because the same is true of me.) Her academic writings have been careful, not controversial. Her tenure as dean of Harvard Law School was marked by broadly shared good will, not radical change, and great success in fundraising. In the solicitor general's office, she has been a very effective advocate, a great boss and a popular presence. The court treats her with great respect. She gets along with liberals and conservatives alike. She is a great favorite on the Judicial Conference circuit, the get-togethers of federal judges around the country.

How do you beat a woman like her? You don't.

Some will probably argue that in picking Kagan, the president made a safe choice, and I think that is certainly true. But he also made a very good choice. Kagan's experience in the Clinton White House and at Harvard Law School (once known as the Beirut of legal education, in the days when Beirut was more like Baghdad) helped her develop a set of skills that is almost as important in a Supreme Court justice as legal brilliance. She is a consensus-builder. She is a team player. She is ideally suited to succeed in an institution where five votes matter, not one.

When Justice Stevens, whom she will replace, first joined the court, he was known for his dissents. They were brilliant dissents, but they were, very often, lonely ones. I remember, clerking for him in the early years, telling him how this or that justice worked the halls or the phones to put together their majorities. It was not his instinct, in those early years, to do that kind of politics. He wanted reason, argument and logic to carry the day. He had lunch every day with his law clerks, which was wonderful for us, but not a vote getter.

I think Kagan will be a very popular justice. I think she will be one of those who walks the halls, works the phones, does lunch and dinner. I think she will be a leader of the court for years to come. She happens to be, on a personal level, a lovely woman. I could not be more pleased for her, or more appreciative to the president.

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