Working In These Times
SCOTUS Nominee a Cipher on Labor Issues (Updated)
Updated with AFL-CIO President Trumka reaction
President Obama announced Monday that he is nominating Solicitor General Elena Kagan to fill the upcoming vacancy on the U.S. Supreme Court. Labor activists and union officials will likely be left scratching their heads: Kagan's record yields few hints as to how she might rule on labor issues.
In 2009, Kagan became the first female solicitor general of the United States. To date, she has only argued a handful of cases before the Supreme Court. But Kagan did represent the U.S. government in the recent Citizens United Supreme Court case, arguing that corporations and unions should not be allowed to spend unlimited sums from their general treasuries to influence elections.
However, as Marvin Ammori argues at Balkinization, it is unclear whether Kagan's personal views match up with the case she argued on behalf of her client, the U.S. government. Ammori concludes that she may personally favor expanded speech rights for corporations. Organized labor was deeply divided over Citizens United, which Kagan and the U.S. government lost.
Richard Trumka, president of the AFL-CIO, which filed a brief in favor of looser regulations on union spending to influence elections, congratulated Kagan today, saying:
Ms. Kagan is the daughter of a housing lawyer devoted to the rights of tenants and a public school teacher. We are optimistic that she will bring to the bench a full appreciation of the issues confronting working families in today's economy.
The nomination whisks Kagan out of the solicitor general's office before she has to take a stand on the constitutionality of Arizona's notorious new "papers please" immigration law—another issue of keen interest to labor.
George W. Bush chose Supreme Court nominees with minimal paper trails and impeccable movement conservative credentials. Kagan is no liberal stalking horse. She's a centrist who sees eye-to-eye with the president on a number of key issues. She's well liked by the Washington establishment.
Marc Ambinder of the Atlantic explains:
Kagan is part of the club. She was a domestic policy adviser during the Clinton administration. She tried to get Obama to become a Harvard Law prof. She and he are brilliant, detached, and of like minds. She has many ties in the administration.
Kagan's nomination proves once again that if you aspire to be a Supreme Court Justice, your best bet is to stay silent on the issues and make friends with powerful people. That strategy doesn't exactly bode well for those watching SCOTUS from within the labor movement.
But Trumka, at least, is optimistic, offering a hopeful "wait-and-see" approach to Kagan's thoughts on labor issues: "We look forward to Ms. Kagan's hearing before the Senate Judiciary Committee," he said, "and learning more fully her position on labor and employment issues."