Long before Supreme Court Justice John Paul Stevens’s April 9 announcement that he will retire this June, legal observers had already picked a front-runner for the seat Stevens has occupied for 34 years: former Harvard Law School dean and current US Solicitor General Elena Kagan.
Kagan is seen as the politically wise choice for Democrats. Some legal and political observers say the moderate credentials that earned her quick congressional approval in 2009 for solicitor general — the government’s head lawyer and spokesperson before the Supreme Court — would translate into a relatively smooth Supreme Court confirmation. Having already approved her as SG, it would be difficult for congressional Republicans to oppose Kagan’s nomination and paint her as “outside the mainstream.”
But this focus on short-term political calculation obscures the most significant consideration. On matters of executive authority — where the judicial branch has been a vital bulwark against post-9/11 “war on terror” civil-liberties violations — Kagan’s record indicates an ideological departure from Justice Stevens, who authored watershed detainee-rights opinions and organized the five-justice majorities that struck down other Bush administration power grabs.
To be sure, attempting to assess a judicial philosophy, much less a justice’s evolution once on the bench, is difficult (see David Souter). And Kagan’s tight-lipped nature regarding her personal legal philosophy, coupled with a scant paper trail, doesn’t help. But if her record — the few clues she provided as an academic, and in her tenure thus far as SG — is any indication, she’s more likely to side with the conservative bloc on matters of executive power and war-time presidential authority.