Between a Rock and a Hard Place

It’s a pretty safe bet that the Democratic-ruled Senate will confirm Solicitor General Elena Kagan, President Obama’s Supreme Court nominee, by about Aug. 6, with over 60 votes. But that’s not to deny that many conservatives—and some liberals—will raise passionate complaints that the 50-year-old Kagan is unfit to be a justice. Indeed, they’ve been attacking her for as long as she has been the consensus front-runner for the nomination.

Conservatives and others have pounded especially hard on her efforts to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the exclusion of gays from the military.

Few if any critics doubt that Kagan is extraordinarily intelligent and accomplished, or that she demonstrated great skill as a consensus-builder as dean of Harvard Law School, where she calmed the troubled ideological waters and won the admiration of conservative and liberal colleagues alike, from 2003 through 2008. But critics do claim that Kagan—who spent most of her career as a law professor and Clinton White House official, with very little courtroom experience before becoming Solicitor General—has less experience relevant to being a justice than any nominee in decades. Indeed, unlike all nine current justices, she has no judicial experience at all.

The New York-born Kagan would increase the Court’s domination by establishmentarians who attended Harvard and Yale law schools—six and three justices, respectively—and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.

Kagan gets it from both sides. Although she has been extraordinarily careful to keep her views on issues such as abortion, race, and religion to herself, most conservatives—convinced that Obama would never have chosen her had he not been confident of her positions on the big issues—suspect that she’s too liberal. And some left-liberals warn that she’s not liberal enough.

The conservatives’ main strategy will be to portray her as representative of the academic left’s hostility to the military—the nation’s most popular major institution—and even (conservatives say) to America itself. This was the basis for the 31 Republican votes against confirming her as solicitor general.

Kagan has taken pains to praise the military, with apparent sincerity. And her denunciation of the law excluding openly gay men and women from the military—as “a profound wrong” and “a moral injustice of the first order”—might win her more applause than condemnation.

The focus of the criticism has been her passionate effort as dean of Harvard Law School to continue a longstanding ban on use of campus facilities by military recruiters along with any other employers who discriminate against gays. Kagan backed down when the government threatened to use the federal Solomon Amendment, designed to deny federal money to institutions that discriminate against military recruiters, to end Harvard University’s more than $300 million a year in federal funding. But then she joined dozens of other Harvard professors in a Supreme Court friend-of-the-court brief seeking to emasculate the Solomon Amendment by strained interpretation, and thus to enable law schools and others to ban military recruiters without losing any federal money. The Court rejected Kagan’s position by 8-0, saying that it would render the Solomon Amendment “largely meaningless.” The justices also rejected the plaintiffs’ claim that the Solomon Amendment was unconstitutional.

Kagan’s stance on this issue was the path of least resistance in the legal academic world. But it may not play well in Peoria. Indeed, even one moderate-liberal commentator, Peter Beinart, called Kagan’s stance a “stupid and counterproductive” surrender to “the left-wing mindlessness that sometimes prevails on campus.”

Ironically, Kagan also has forceful critics in the same left-wing circles that Beinart faults her for appeasing. They are especially unhappy with her failure to compile a record of aggressively advocating liberal causes over the years, with her hiring at Harvard of two or three conservative, white male professors—and too few women and minorities—and with her arguments as solicitor general in support of Obama terrorism policies similar to those of the Bush administration.

But Kagan’s many liberal champions point out that in defending Obama’s policies, she has just been doing her job, not advocating her own views. And even the liberals who are unhappy with her won’t try to defeat her.

A poised oral advocate, Kagan also seems likely to dodge with ease thrusts thrown by Republican senators during her confirmation hearing while deftly ducking demands to state her views on the issues, as have all recent nominees. The Republican senators surely know this. Their game is not to defeat her, or even to pin her down. It is to paint Kagan, her president, and their party under the confirmation-battle klieg lights as effete liberal elitists, to fire up the conservative base, and to win over independents.

And part of Kagan’s challenge will be to show that while she may hail from Harvard, she has the heart of an empathetic, all-American patriot.

Taylor is a contributor to NEWSWEEK and National Journal.