by Dr. Marc Lamont Hill
Yesterday, President Obama nominated United States Solicitor General Elena Kagan to replace John Paul Stevens on the Supreme Court. Few were surprised by the choice, as Kagan has long been viewed a frontrunner for the high court. While many observers have applauded Obama’s decision, others like myself were left with a lingering question.
Is this really the best we could do?
Let’s be clear, I am not questioning Kagan’s basic qualifications as a nominee. Unlike those who have questioned her “temperament” and “intellectual curiosity”—loaded queries that only seem to get raised in relation to women and minority candidates—I have little doubt about Kagan’s fitness for the job. Rather, I am concerned about Kagan’s ability to fill John Paul Stevens’ shoes as the progressive anchor of the Supreme Court.
Although she undoubtedly shares the same political persuasion as Justice Stevens, Kagan is considerably less progressive on major issues of the day. While Stevens has filed numerous dissents in an effort to challenge the Bush (and now Obama) doctrine of endless executive power, Kagan has dutifully argued in favor of policies that undermine the spirit and letter of the Constitution. For example, during her confirmation hearing for Solicitor General, Kagan offered unequivocal support for the indefinite detention of suspected terrorists as well as the bizarre belief that the entire world is a battleground. On other issues, from gay marriage to civil rights, Kagan has done nothing to inspire confidence that she would continue Stevens’ tradition of principled and rigorous resistance.
The choice of Kagan is even more disappointing when examining the other viable option. Diane Wood, a highly respected judge who currently sits on the U.S. Court of Appeals for the Second Circuit, has a long and successful record of defending the Constitution from the onslaught of right-wing jurists. Also, like Justice Stevens, Wood has also demonstrated the ability to persuade conservative judges to change their opinion on controversial cases. In addition, Wood’s Protestant faith and non-Ivy League education would have added another layer of diversity to the court. While Wood was certainly a more contentious choice, there is little doubt that she would have been confirmed by the Democrat-controlled Senate.
True to form, political pragmatists have claimed that Kagan was the best choice available. By choosing a relatively moderate nominee, they argue, Obama effectively prevents the Right from turning the confirmation hearings into a political spectacle designed to make both Kagan and Obama look like ideological extremists. While this argument is theoretically sound, it rests upon the native expectation that the Republican Party operates in good faith.
They do not.