Elena Kagan and the Supreme Triangulation of Barack Obama

Stephen J. Fortunato Jr.

As U.S. Supreme Court nominee Elena Kagan’s confirmation hearing continues this week, it’s worth questioning her suitability by way of analogy. Would a responsible board of directors at a hospital place in charge of surgery a physician who had never wielded a scalpel in an operating room? Would a competent city council appoint someone who had never fought fires to be fire chief? The obvious answers are No,” and No.”

Obama missed an opportunity to fill a position on the court with a person whose commitments and achievements in the areas of civil rights and civil liberties are solid and unambiguous.

Yet President Barack Obama’s appointment of the inexperienced and ill-equipped Elena Kagan to a position on the United States Supreme Court is the equivalent of these preposterous scenarios. It is not her lack of judicial experience that should be a disqualifier; 40 of the 111 justices who have served on the Supreme Court to date assumed their positions with no prior experience on any bench, including luminaries such as Louis Brandeis and Earl Warren. 

Kagan’s deficiency is that she has no significant experience as a lawyer, having never set foot in a courtroom until she became U.S. solicitor general in March of 2009. In that capacity she argued several times in the Supreme Court, but this is an activity that any moderately competent law school graduate could perform. I speak from experience, having argued in that forum when I was five years out of law school. I can attest, as any candid lawyer would, that defending a felony assault or drug charge in front of a jury or arguing for a zoning variance in front of hostile municipal officials are more challenging and complicated tasks.

With his appointment of a former Harvard Law School dean who has but six scholarly articles to her credit (while other senior academics in the legal field have four or five times that many), President Obama overlooked a number of eminently qualified lawyer/​scholars who fit his apparent criterion that the nominee come from outside the judiciary. 

Harvard Law Professor Lani Guinier is a leader of this parade of notables, but by not even considering her, Obama shows he is not responsive to the coalition of unionists, young people, women and progressives who pushed his candidacy into the White House. Guinier, a Yale law graduate and, like Barack Obama, a child of a white and a black parent, is an esteemed civil rights litigator and recognized expert on the legal impediments to full participation in the institutions of democratic government experienced by blacks and other minorities. 

She writes and lecturers widely, drawing upon her experience as a special assistant to the Assistant Attorney General for civil rights in the Carter administration and her seven years with the NAACP Legal Defense and Educational Fund. In her 2003 book, Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice, she discusses, among other things, the withdrawal of her nomination by President Bill Clinton to head the Civil Rights Division of the Department of Justice because of a conservative uproar that she was a Quota Queen.” 

Guinier, of course, is not the only lawyer with scholarly accomplishments who toils for enlightened change. Barry Scheck, who first came to national prominence in 1995 as the DNA expert for the defense in O.J. Simpson’s trial, has been the primary force behind the movement that has led to the exoneration of countless wrongfully convicted people. A professor at the Benjamin N. Cardozo Law School, he and Peter Neufeld founded the Innocence Project in 1992, and along with Neufeld and journalist Jim Dwyer chronicled their success in a 2000 book, Actual Innocence. It is no exaggeration to say that Barry Scheck and his colleagues have revolutionized the way thoughtful people look at the criminal justice process and the distressing fact that it is anything but fail-safe. 

These are but a few of the litigator-scholars, or call them scholar-litigators if you will, whose credentials and experiences dwarf those of Elena Kagan. Each is eminently qualified to sit on the Supreme Court as the appointee of a president who holds himself out as a progressive and who as a senator voted against the confirmations of John Roberts and Samuel Alito because of apprehensions about their judicial philosophies. Say what you will about George W. Bush, but he was not bashful about selecting brainy jurists who reflected his ideological viewpoints about the role of the judiciary. 

Unfortunately, on the crucial issue of Supreme Court nominations, first with Sonia Sotomayor and now with Elena Kagan, Obama has elevated triangulation and compromise over principle and experience. Even the Standing Committee on Federal Judiciary of the American Bar Association states in one of its booklets that substantial courtroom and trial experience (as a lawyer or a trial judge) is important for prospective nominees to both the appellate and the trial courts.” But the committee notes that if this type of experience is lacking, an appropriate substitute would be significant evidence of distinguished accomplishment in the field of law.” 

With Kagan’s nomination – now heading toward confirmation – Obama missed an opportunity to fill a position on the Supreme Court with a person whose commitments and achievements in the areas of civil rights and civil liberties are solid and unambiguous. If confirmed, Kagan will take her place easily among the corporate and academic careerists currently sitting there, none of whom ever stepped inside a courtroom to defend a person accused of a felony (though 25 percent of their caseload involves criminal law) and none of whom, except Ruth Bader Ginsburg, ever fought for civil rights on behalf of the marginalized. 

Kagan’s sparse record has forced both the left and the right to speculate about where she stands on a host of matters. With the institutional integrity of the Supreme Court as much at stake as its direction for the coming decades, Obama has regrettably shown that he is more concerned with the prejudices and predilections of senators like Mitch McConnell and Jeff Sessions than those of the constituency that put him in the White House.

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Stephen J. Fortunato Jr. was as an Associate Justice of the Rhode Island Superior Court for 13 years. He is now an Adjunct Professor at the Roger Williams University School of Law.
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