Jamie Weinstein

As expected, President Barack Obama selected U.S. Solicitor General Elena Kagan as his nominee to replace retiring Justice John Paul Stevens on the Supreme Court on Monday. Considering how unfair and irresponsible Democratic Senators have behaved in handling Republican Supreme Court nominees in the recent past, Republican Senators have every right to vote against the former Harvard Law School dean for any reason under the sun. But in this case, it would be wise for Republicans not to play the role of obstructionists.

Could be worse.

Elections have consequences and one of those consequences is that a liberal president has the right to nominate who he wants to the Supreme Court. In most cases, they should be confirmed.  It just so happens that this time the president has nominated someone many legal experts consider a “blank slate.”

“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,” Tom Goldstein of the influential SCOTUSblog has written.  While it is clear that Kagan is to the left of center politically, her lack of record on important legal issues makes it unclear just how liberal she is.

In other words, Kagan could potentially be more centrist than some Democrats think. While this may be unlikely, it is at least a possibility. And a centrist, moderately liberal possibility for the Supreme Court is the best Republicans could hope for with a liberal president residing at 1600 Pennsylvania Avenue.

This is not to say that Kagan’s record is so bland that there is nothing to criticize. While Dean of Harvard Law, for instance, Kagan outrageously sought to hinder the military’s ability to recruit on campus because of the Don’t Ask, Don’t Tell policy it adheres to. After being forced to backtrack under the threat of the government withholding research funds from Harvard, Kagan sent an e-mail to students and faculty declaring that she “abhor[s] the military’s discriminatory recruitment policy,” calling it “a profound wrong — a moral injustice of the first order.”

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Of course, Don’t Ask, Don’t Tell was a policy set by the U.S government, not the military. And it was set on the watch of President Bill Clinton, for whom Kagan worked from 1995 to 1999. To state the obvious, Kagan did not refuse employment with President Clinton despite the president’s backing of what she considered “a moral injustice of the first order.”

Whatever one thinks of Don’t Ask, Don’t Tell, for Kagan to attempt to hinder military recruitment on campus in some misguided moral crusade is at the least very unsettling. That she sought to do this at a time of war is reprehensible.

There is also something troubling about what many see has Kagan’s “calculated” decision to avoid taking a stand on political and legal issues (other than Don’t Ask, Don’t Tell, of course). “Ms. Kagan’s paper trail is scant, her academic writings painstakingly nonideological,” a New York Times article on Kagan’s career reads. “During her academic and public life, she has rarely spoken of her political beliefs.”

Political commentator David Brooks has placed Kagan in a class he terms Organization Kids. Like other Organization Kids, Kagan seems to be “bright, impressive, and honest,” Brooks wrote, but “her willingness to suppress so much of her mind for the sake of her career” struck him as “kind of disturbing.”

It is more than a kind of disturbing. It is very disturbing. This is not to suggest that Kagan should have been indoctrinating students in her classes like too many professors do. But a bright mind like Kagan, one would think, would have plenty to offer to the arena of ideas. Yet she has kept her mouth shut and her pen silent so not to reveal too much of what she believes out of fear, presumably, that she might harm her chances of achieving her life long ambition to become a Supreme Court justice.

Nonetheless, if you can overlook Kagan’s grotesque stance on military recruitment on campus and calculated blandness, there is actually much to praise in Kagan’s career. She is obviously a bright and ambitious woman. Her tenure at Harvard Law is near universally praised. Most importantly, as Harvard Law Dean, Kagan helped make the campus more ideologically diverse by luring conservative professors to the faculty. This is very admirable.

Kagan is surely not the perfect nominee by any stretch of the imagination. She is not the type of justice the board of the Federalist Society would have picked. But the choice could have been worse and there is at least some hope that she may be more centrist than some Democrats would like.  And, ultimately, she will be a liberal replacing a liberal on the High Court, which means the ideological composition of the court will not significantly change. The Right has too many more important battles to fight than the Battle of Elana Kagan.

Memo to Conservatives: To get judges more palatable to your ideological disposition, come out and vote in 2012.

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