President Obama's nomination of Elena Kagan to replace Justice John Paul Stevens is frustrating on several levels. The first Supreme Court nominee in nearly four decades with no judicial experience, Kagan has argued only six court cases, spending her career instead inside the ivy-covered walls of academe and the power corridors of Washington. While Kagan would increase the gender diversity of the court, she diminishes diversity in almost every other respect.
The court loses its only Protestant (America's largest religious group), leaving six Catholics and three Jews. The court bids farewell to its only non-Ivy League law graduate, so now all the justices will have been law students at either Harvard or Yale. Gone is its one military veteran, replaced by a law school administrator who opposed military recruiting on campus. Now a full third of the court will hail from New York.
Truly puzzling was Obama's assertion that Kagan will understand the law "as it affects the lives of ordinary people." A lawyer's daughter who attended Princeton and Harvard, and who has spent her career at the University of Chicago, Harvard and the White House, may understand how the law affects elites. William F. Buckley's wry comment comes to mind: I'd rather be judged by the first hundred names in the Boston phone book than the faculty of Harvard University.
Now the focus turns to the Senate confirmation process, where, despite Kagan's intelligence and charm, hard questions should be asked. Indeed, in a 1995 article, Kagan herself said the Senate needed to get past its "vapid and hollow charade" and fully explore a judicial nominee's views. Without a judicial record of cases to review, and given her thin scholarly output of largely technical articles, almost nothing is known of her values or philosophy. She should be asked about her stance against military recruiting on campus at Harvard, a position her prospective colleagues on the Supreme Court rejected 8-0.
Questions that Kagan answered in her confirmation as solicitor general - such as her views on same-sex marriage and other social issues - should be posed again, because her earlier answers merely confirmed legal precedent, and a Supreme Court justice can change precedents.
A letter she signed with other law deans to increase detainee rights is a key topic for inquiry, and whether this thinking stretches to related questions of immigrant rights.
For all her personal strengths, Kagan is the least experienced Supreme Court candidate with the thinnest record of constitutional philosophy we have seen. In many ways, this is not so much the fault of Obama or Kagan but of the contentious political process for judicial nominations. Perhaps renewed calls for term limits for federal judges or other reforms will finally receive the attention they merit.
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