http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chanceThe liberal case against Kagan is overstated
President Obama's Supreme Court pick is mainly guilty of muting her progressive ideals in the service of ambition
By James Doty
Over the past several weeks, a chorus of progressive voices has portrayed Elena Kagan -- whom President Obama is expected to nominate for the Supreme Court on Monday -- as an intellectual cipher. She may be smart, they argue, but she has provided few clues about her thoughts on any major legal issues and even fewer about her judicial philosophy. Even worse, her critics claim, what we do know about Kagan’s beliefs suggests that she is sympathetic to Bush-style arguments on executive power and thus, on at least one major issue, threatens to move the court significantly to the right.
These criticisms are, at the very least, dramatically overstated. A review of Kagan’s professional record and writings suggests that she would fit comfortably on the left-hand side of the judicial spectrum.snip//
Following her clerkship with Marshall, Kagan worked on Michael Dukakis' presidential campaign, helped shepherd Ruth Bader Ginsburg’s nomination through the Senate Judiciary Committee, and served two separate stints in the Clinton administration before assuming her current role as Obama’s solicitor general.
None of this speaks directly to Kagan’s personal beliefs, of course. But it does suggest that she feels most at home in the company of those who are ideologically left-of-center.Of course, left-leaning political sensibilities don’t necessarily correlate with a liberal judicial vision. One can believe, for example, in the goals of social equality and economic fairness but think that such ends should be achieved legislatively, not judicially.
Kagan’s (admittedly scant) writings on the subject suggest that she might instead embrace Marshall’s view that the Constitution should be interpreted expansively to provide rigorous protections for the dispossessed. In eulogizing her former boss in a 1993 law review article,
Kagan observed that Marshall’s pragmatic jurisprudential approach considered not just the law as written, but “the way in which law acted on people’s lives.” As Kagan noted, this approach demanded “special solicitude for the despised and disadvantaged.” Kagan lauded this view of the judicial role, saying that “however much some recent justices have sniped” at Marshall’s vision, it remained “a thing of glory.” In the article’s closing, Kagan nodded to the progressive view that the Constitution grows and adapts to meet the needs of a changing society, giving Marshall “credit” for our “modern Constitution.”
Even if Kagan’s judicial beliefs don’t align with Marshall’s in all particulars, her willingness to praise his general judicial principles suggests that she, like Marshall, sees the Constitution as a dynamic bulwark against majoritarian tyranny and political persecution. This contrasts not only with the beliefs of Marshall’s antagonists like Scalia, who view the Constitution as static and unchanging, but even with Justice Sonia Sotomayor, who stated blandly at her confirmation hearing that her only interpretive guidepost was “fidelity to the law.”
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http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/feature/2010/05/09/liberals_should_kagan_chance