Second, we know from friends and colleagues that Kagan is a social liberal. Charles Fried, a prominent jurist at Harvard, says, "I do not doubt that her heart beats on the left." It could hardly be otherwise. Kagan hails from a very small ideological neighborhood -- Manhattan, Princeton University, the University of Chicago, and Harvard Law School. To paraphrase President Obama, she shows a keen understanding of how the law affects the daily lives of people on the Upper West Side and in the Ivy League.
Third, we know, or at least suspect, that Kagan is favorable to strong executive authority. Her writings endorse presidential control of federal agencies on domestic issues. During her confirmation hearings for solicitor general, Kagan also seemed to approve the detention of enemy combatants without trial during a time of war.
So: Kagan is a fair-minded social liberal who favors a strong executive. Sound like anyone you know? It would seem that Obama has chosen a version of himself.
But are these vague attributes enough for the Senate to make a serious judgment about the quality of a Supreme Court nominee? Wouldn't it be helpful to know Kagan's political, legal and constitutional views? The political culture surrounding judicial nominations -- driven by attack ads and advocacy groups -- undermines this possibility. "The Framers intended the Senate to take the broadest view of its constitutional responsibility," a senator once explained, including the scrutiny of a nominee's "political, legal and constitutional views." That was Joe Biden announcing his opposition to Judge Robert Bork in 1987. Bork's vivid opinions were used by opponents to sink his nomination. Kagan's confirmation strategy, implemented over a lifetime of blandness, is likely to be more effective.
Yet Kagan's expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn't like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?
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