Kagan Can Offer a “Political Reward”

Appointed for life, this Democratic activist could stay on the Supreme Court for several decades and allow Obama to leave a progressive mark on the jurisprudence of the United States, according to expert Vincent Michelot.

On Monday, May 10, Barack Obama nominated Elena Kagan to the United States Supreme Court. If his nomination is confirmed by the Senate, Kagan, the Solicitor General for the current administration, will be the only member of the institution not to have been a judge. The Supreme Court would also, for the first time, have three women among its members. Barack Obama urged the Senate to support his candidate beyond party lines and quickly confirm his choice.

But the Republicans — who are within six months of general elections in which they expect to gain a large number of seats — have hinted at a battle ahead. “Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice,” said Republican Senator John Cornyn.

Le Figaro analyzes the nomination with Vincent Michelot, professor at the Institut d’Etudes Politiques de Lyon and author of a doctoral thesis entitled “Appointments to the Supreme Court of the United States (1937-1987): Political Aspects.”

INTERVIEW

LEFIGARO.FR – Is the nomination of Elena Kagan going to change the political balance in the Supreme Court?

MICHELOT VINCENT – No. Though nominated by Republican President Gerald Ford in 1975, Justice John Paul Stevens — whom Elena Kagan would replace — shifted to the progressive and liberal wing of the Supreme Court over the years. Kagan will instead alter the internal dynamics of Court, consisting of four progressive justices, four conservatives and a conservative “moderate” who occasionally votes with the progressives, Justice Kennedy.*

With the nomination of Kagan, Obama provides a thoughtful leader to the progressives. Learning from her experiences as a remarkable teacher at Harvard, Kagan should be able to create alliances and build consensus in the Supreme Court. Her role will be to convince Kennedy to join the progressives, especially on key issues such as the separation of church and state, the scope of executive power, gender equality and the politics of promoting diversity.

LEFIGARO.FR – What political message did Obama want to send by nominating a third woman to the Supreme Court? Was equality an important promise in his campaign?

MICHELOT VINCENT – Considering Sotomayor, this is the second time that he has nominated a woman to the Supreme Court. It’s amazing, but one should not see Kagan as a symbol of equality between the sexes. The Supreme Court and its nine members are not dominated by issues of gender or race but by questions of jurisdiction and “the transformative potential of law.” By choosing a controversial figure among ultraconservatives, Obama is taking a risk and can reap a great political reward. Elena Kagan’s ability to influence the law is the most important thing. In the short term, the Supreme Court, with her influence, may reverse court rulings that are obstacles to overall reform. In the long term, there is the idea of building a progressive jurisprudence. With Kagan as a member of the Supreme Court, President Obama intends to transform the institution. In a system where appointments are for life, Elena Kagan, at 50 years old, is still “young.” If she follows the same path as John Paul Stevens, who retired at age 90, she could remain on the Supreme Court until 2050 and potentially become Chief Justice of the Supreme Court.

LEFIGARO.FR – This specialist in constitutional and administrative law will be the first judge on the Supreme Court since the ’70s that has not served on a federal appeals court and has not had any judicial experience. Will this be an Achilles heel during the Senate Judiciary Committee hearings?

MICHELOT VINCENT – This peculiarity is a double-edged sword. One could criticize her lack of judicial experience. The U.S. Constitution requires no particular qualifications to become a Supreme Court judge. But we are talking about an experienced lawyer, the former dean of Harvard Law School. Kagan has practiced law for thirty years. She is one of the best constitutional lawyers in the country. Not having been a federal judge or state court judge, she has no written decisions to examine during the hearings before the Senate Judiciary Committee. It is a form of advantage. They cannot challenge her on the basis of writings, which could be used for ideological or partisan exploitation.

Others might accuse her of having a bias towards the Obama administration in her role as Solicitor General of the United States, but she is no more or no less subjective than other Supreme Court judges who have engaged in political activities. Samuel Alito worked for the George H. W. Bush administration. Furthermore, should Kagan be confirmed, she must recuse herself from cases in which she has conflict of interest that come before the Supreme Court. For now, there has been little response from the Republicans regarding Kagan’s nomination. It will be interesting to see how they manage the timetable of the confirmation hearing before the Senate Judiciary Committee and the full Senate. There could be attempts to block the nomination. In the Senate, senators can resort to the “filibuster” (a Senator can take the floor to speak and hold it for as long as they can). Obama would like to see Elena Kagan take office in September.

LEFIGARO.FR – Is there an idea of Elena Kagan’s positions on issues like abortion, gun rights or the death penalty?

MICHELOT VINCENT – No judge on the Supreme Court has made his or her position known on future cases during the Senate Judiciary Committee hearings. To do so would show prejudice and result in rejection by the Senate. The Supreme Court rules not on theoretical issues but on specific cases. It is difficult to detect Elena Kagan’s political views through looking at her career. As Solicitor General, she was in the service of the government and did not choose her cases. Her background will bring variety to the institution. The Supreme Court, consisting of former judges, has difficulty dealing with social issues, given the absence of occupational diversity. In the past the institution included senators, governors, lawyers from private enterprise and even a former tenant of the White House. These different backgrounds brought legitimacy to the Supreme Court. But today, the Supreme Court makes decisions in a theoretical and disembodied manner that fails to take into account that the terms of law are actually put into practice in the country.

* Conservative Judges: Antonin Scalia, John G. Roberts, Clarence Thomas, Samuel Alito. Judge moderate conservative “swing”: Anthony Kennedy. Progressive Judges: John Paul Stevens replaced by Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor

Editor’s Note: Note above appears in the original text.