Between a Rock and a Hard Place Place for Elena Kagan





It's a pretty safe bet that the Democratic-ruled Senate will confirm Solicitor General Elena Kagan, President Obama's Supreme Court nominee, by about Aug. 6, with over 60 votes. But that's not to deny that many conservatives—and some liberals—will raise passionate complaints that the 50-year-old Kagan is unfit to be a justice. Indeed, they've been attacking her for as long as she has been the consensus front-runner for the nomination....

The New York-born Kagan would increase the Court's domination by establishmentarians who attended Harvard and Yale law schools—six and three justices, respectively—and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.


Kagan gets it from both sides. Although she has been extraordinarily careful to keep her views on issues such as abortion, race, and religion to herself, most conservatives—convinced that Obama would never have chosen her had he not been confident of her positions on the big issues—suspect that she's too liberal. And some left-liberals warn that she's not liberal enough.

The conservatives' main strategy will be to portray her as representative of the academic left's hostility to the military—the nation's most popular major institution—and even (conservatives say) to America itself. This was the basis for the 31 Republican votes against confirming her as solicitor general....

Kagan's stance on this issue was the path of least resistance in the legal academic world. But it may not play well in Peoria. Indeed, even one moderate-liberal commentator, Peter Beinart, called Kagan's stance a "stupid and counterproductive" surrender to "the left-wing mindlessness that sometimes prevails on campus."

Ironically, Kagan also has forceful critics in the same left-wing circles that Beinart faults her for appeasing. They are especially unhappy with her failure to compile a record of aggressively advocating liberal causes over the years, with her hiring at Harvard of two or three conservative, white male professors—and too few women and minorities—and with her arguments as solicitor general in support of Obama terrorism policies similar to those of the Bush administration....



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