Kagan Might Not Be Prepared to Sway Anthony Kennedy

Elena Kagan is being attacked for her lack of judicial experience by some of the same folks (e.g., Sen. John Cornyn) who said Harriet Miers was especially qualified for the Supreme Court because President Bush had gone outside the usual suspects and nominated someone who wasn't a judge. That's Washington, where hypocrisy is just another day at the office.

Eleanor Clift takes them to task, noting Kagan's assertive presence in Supreme Court oral arguments.

But there's something to the charge of inexperience as it applies to Job One for any Obama appointee—"getting to five" by wooing Justice Anthony Kennedy to the more progressive side on occasion. Kagan had a chance to do that in the now-famous Citizens United case and she failed. It was ironic that President Obama cited that case in announcing Kagan's appointment. He admired her initiative in making Citizens United her first case as solicitor general and her sense of justice in standing up to unfettered corporate power over elections. It was clearly one of the reasons he chose her. Unfortunately, Kagan missed a couple of opportunities to narrow the scope of her argument and thus of the possible fallout from a decision that went against her side.

Obama says he doesn't like "gestures" and "symbolic arguments," but that's essentially what Kagan did when she chose to argue Citizens United as a matter of major constitutional principle rather than a specific case about an anti–Hillary Clinton movie that was being wrongly categorized within campaign-finance law. Had she done the latter, there's at least a chance that Kennedy could have been brought over on narrow legal grounds, thus avoiding the wholesale damage done to campaign-finance reform by the sweeping decision.

Obama admires Kagan in part because, as he mentioned, she brought some ideological diversity to the Harvard faculty. These decisions are always at least partly personal. The president likes to think of himself, accurately, as someone who worked well across ideological lines when he was editor of the Harvard Law Review. She's in his mold. But faculty and law-review politics are minor league compared with the Supreme Court. Elena Kagan will likely be a fine justice. But right now her record is 0-1 when it comes to "getting to five."

Kagan Might Not Be Prepared to Sway Anthony Kennedy | U.S.