Conservative friends rise in support of kagan

May 15th, 2010|Jeniffer David
Law

The essence of their take on Kagan, the former Harvard Law School dean who now serves as solicitor general, is that she clearly has the smarts to be a justice and has shown an ability to work with all sides on thorny issues.

She has had a remarkable and truly unusual record of reaching out across ideological divides, said Michael McConnell, a former federal appeals court judge who was nominated by President George W. Bush.

Longtime Kagan friend Miguel Estrada, whose appeals court nomination by Bush was blocked by Senate Democrats, said, Shes clearly qualified for the court and should be confirmed. Obviously, shes a left-of-center academic who never would have been picked by a Republican. But no one can doubt her intellectual accomplishments.

In a letter to the Senate Judiciary Committee Friday, Estrada said, If such a person, who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.

Former special prosecutor Kenneth Starr, who ran the investigation that led to President Bill Clintons impeachment, said charges by some conservatives that Kagan holds extreme views are off-base.

Thats politics, and unfortunately confirmation politics have been very ugly, with a few happy interludes, ever since the nomination of Judge Robert Bork, Starr said on MSNBC.

Conservative interest groups and some senators have raised questions about Kagans lack of judicial experience and suggested that she might be a rubber stamp for Obama on the high court. They also have seized on her opposition to military recruiters at Harvard over the Pentagons dont ask, dont tell policy on gay soldiers. The conservative critics argue that she would be a liberal, activist justice.

Carrie Severino, chief counsel to the Judicial Crisis Network, said endorsements by prominent conservatives do nothing to answer the questions about Kagan.

I dont think that really changes our analysis, Severino said. Were very interested in finding out what kind of a justice she would be. As of right now, what we see looks very troubling.

Severinos group released a video Friday blasting Kagan for barring military recruiters over dont ask, dont tell. GOP senators have said the decision casts doubt on Kagans fitness for the bench.

Thomas Goldstein, a Supreme Court lawyer who writes about the court and nominations for Scotusblog.com, said the support on the right is potentially useful to Kagan.

When conservative icons strongly endorse Kagan, that knocks the legs out from under the claim that shes either unqualified or a liberal activist. Those arguments end up looking like pure politics, Goldstein said. The endorsements also give critical cover to moderate Republicans who want to vote for her but worry about criticism from the right.

So far no Republican senator has announced support for Kagan, who received seven GOP votes when she was confirmed as solicitor general last year.

McConnell, who teaches law at Stanford University, agreed with Severino that Kagans stand on military recruiters was a dreadful decision. But he said that Harvard was like many other major law schools at that time in seeking to bar military recruiters over discrimination against gays. He said the episode was not a serious black eye.

He also said that Kagan will be a safe liberal vote in most cases that divide on ideological grounds.

Yet, he said, As I chat with other center-right law professors, shes got overwhelming affection and support.

He attributed some of that support to Kagans openness to arguments across the political spectrum.

Shes a bit unusual in this respect, particularly at this juncture when not just the Supreme Court but the country basically is divided into two camps that often cannot speak to each other, McConnell said. Kagan, who has known McConnell since their days as law professors at the University of Chicago in the early 1990s, wrote a letter of support for McConnell in 2002 urging Senate Democrats to confirm him.

She and Estrada have been friends since they sat next to each other in several law school classes 25 years ago. And Starr held the same job as Kagan, when he was President George H.W. Bushs solicitor general. source