Elena Kagan Ready for High Court

It is no surprise that President Obama chose to nominate Ms. Elena Kagan for Supreme Court Justice. Kagan was on the short list last year, when Obama nominated Sonia Sotomayor, and has been the obvious front-runner for this past year.  If confirmed, this New York maverick will be the third woman to serve on the current court and at 50 years old, will also be the youngest Supreme Court Justice in history – which will most likely give her the longest tenure. Not only was she the first woman to represent the government as Solicitor General this past year, but was also the first woman to serve as dean of Harvard law school.

When deciding whom to nominate to replace the retiring Justice Stevens, President Obama was predominantly concerned with changing the ideological dynamic of the current conservative court. He realized that he did not need a steadfast leftist, but wanted someone who would be able to influence and persuade Justice Kennedy’s swing vote away from the rightward direction of the court currently prevalent under Chief Justice Roberts. Fortunately for the President, he found the perfect candidate. Ms. Kagan is not the typical Democratic nominee; she is not extremely left, nor is she in the center, but somewhere in between. She believes in a strong executive power and also in an active judiciary, not a mere interpreter of the constitution and statutes passed by the legislature.  This is why she would most likely face opposition from both sides in the Senate Judiciary confirmation, right wing conservatives and liberals alike.
Although she has an impressive background in law, one thing that may be seen as working against her is her lack of judicial experience. Many have been and are continuously accusing Kagan of not being qualified for the position, reasoning that she has never once served as a judge.  But whether Kagan has had judicial experience should be of no real concern. She may have never before been a working judge, but the extensive amount of knowledge and experience in law that she would be bringing to the court far exceeds any mere judicial experience.

In addition to representing the government in court as the first woman Solicitor General, she has also served as Domestic Policy Aide under President Clinton, Senate Staff member under President Obama and Vice President Joe Biden, briefly worked in maintaining a private practice, and received degrees from Princeton, Oxford, and Harvard. She has had experience in all three branches of government, which is more than enough to qualify her for the position. It is quite obvious that Kagan will face a battle in the confirmation room, but if these Senators really try to evaluate both her weaknesses and her strengths, they will have a tough time doubting her remarkable credentials.

It is true that she would be the first nominee in almost four decades to not have had previous judicial experience, but one does not have to sit as a judge in court to understand everything there is to know about law and the legal system. And let’s face it, if Kagan is confirmed, it will not make too much of a difference. She may actively express her judicial philosophy of a judge who legislates from the bench, but as much as she preaches, she will never have the power to completely change the dynamics of the U.S. political system. Yes, there are three separate branches of government and it may seem as if they are all equally powerful, but it does not take much brain power to realize the limited role of a Supreme Court justice. If confirmed, Kagan will be one of nine members, giving her just enough power to counter the rightward polarization of the court which will allow ample space for Obama to make some real changes, but not enough for her to actually legislate and implement laws.

In fact, a nominee who believes in an active judiciary, as opposed to a strict constructionist, should not be feared but embraced, for it is just what this country needs. Like President Obama has always expressed, this country is in desperate need of change. And hopefully if the Senate confirms Obama’s nomination for Ms. Elena Kagan in July, some real changes can be made as soon as October just as the Supreme Court starts up its next term.

Nesma Tawil is a second-year political science major. She can be reached at ntawil@uci.edu.