As Good As It Gets

The President has picked Solicitor General Elena Kagan to take Justice Stevens’ seat on the Supreme Court.  Kagan is a safe bet for the administration.  She’s got excellent credentials, and there don’t seem to be any significant controversies in her past.  Confirmation will likely be somewhat uneventful.

In any case, no matter what her politics may be, it’s unlikely she’ll be able to shift the Court to the left in the way Stevens sometimes was.

The legal community seems to have a great deal of respect for her. While Dean at Harvard Law School, she was able to unite disparate political factions, and even to earn the respect of conservatives. Ilya Somin points out that she’s got the intellectual credentials, and more important, she’s willing to accept views that differ from her personal politics. On matters of the 1st Amendment, Rick Pildes thinks she would have voted with the majority in Citizens United.

Face it, folks.  We weren’t going to get a conservative.  In the balance of things, this was the best possible outcome.

Since she’s never published an opinion, we have two sources upon which to rely.  The first involves her prior writings, which the authors above pore over in detail.  The second is her testimony given during her confirmation hearings for the office of Solicitor General.  From both sources, I see cause for cautious optimism.

(The original document is here, but be warned, it’s a 325-page pdf file)

Responding to Senator Arlen Spector:

Do you agree with the view that the courts, rather than the elected branches, should take the lead in creating a more just society?

Answer: I do not agree with this view. I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so. (…) But in these cases as well, I think an important consideration for the office to take into account is the degree to which the courts, by staying their hand, can encourage experimentation and healthy debate among the states and their citizens. (pp. 305-306)

In stark contrast to Justice Sotomayor’s infamous “wise Latina” quip:

What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right?  Is there any room in constitutional interpretation for the judge’s own values or beliefs?

Answer: I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure, and precedent. Relating these views to the position for which I am nominated, I think these kinds of arguments also are most successful in advocacy before the courts in constitutional cases. (p. 306)

What of the 2nd Amendment? Responding to Senator Chuck Grassley:

The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment.

Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions of constitutional law (except in areas where I previously have stated opinions), both because those opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation.

I can say, however, that I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation.”

(…)

If I am confirmed, I will commit to show Heller and the principles articulated in it the full measure of respect that is due to all constitutional decisions of the Court. Only highly unusual circumstances can justify the Solicitor General’s office in asking the Court to reconsider a decision, especially one as thoroughly considered as Heller. Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation. (pp. 318-319)

Her adherence to the validity of Heller may be the reason her office did not publish a brief in the McDonald case.  I’m sure the question of McDonald will come up during the confirmation process, and I’m very interested in her answer.

In the end, she comes off as something of a limited strict constructionist.  I’d much rather have a Justice who looks to “constitutional text, history, structure, and precedent” than one who simply mouths all the right political platitudes.

Let’s hope she’s as good as her word.