What Can Conservatives "Be Happy With" On SCOTUS?

Posted: Apr 20, 2010 7:45 AM
Former Reagan administration official Charles Fried had some kind words to say about one of the front-runners for the open Supreme Court slot created by Justice Stevens' retirement in an article subtitled "Why Elena Kagan has earned the respect of conservatives, like me."

The media like to pin a one-word--or if they are more nuanced, one-phrase--epithet on public figures, as Homer would on his gods and heroes (grey-eyed Athena, wily Odysseus). They have decided to attach the term "conservative" (or for the more subtle: "relatively conservative") to solicitor general and former Harvard Law School Dean Elena Kagan. A lot of people--myself included--have described Kagan's many remarkable qualities in many places. Here I want only to explain how she got this dubious sobriquet, one that is unlikely to do her much good.

Does this all mean that she is some kind of crypto-Republican who would shift the Court to the right? And what does her behavior as dean tell us about her ideology? My clear answers are no and nothing. I do not doubt that her heart beats on the left.

What can conservatives be happy with from an Obama nominee? I wrote last week that we'll have to be satisfied with a nominee who has a discernible judicial philosophy and a fidelity to the Constitution. With Kagan, Diane Wood and Merrick Garland having emerged as frontrunners, the worst option for conservatives seems to be Wood. Garland probably is too "moderate" for Obama's left-wing base, but Kagan may be the best that we can hope for.

This doesn't mean that conservatives won't be rightly justified with every criticism that we make of whichever left-wing nominee comes out of the Obama administration. It just means we need to have realistic expectations.

Hat tip Reason