Elena Kagan, Supreme Court nominee, is a cautious pragmatist, NOT a radical

Joshua Greenman

Monday, May 10th 2010, 4:36 PM

Conservatives such as Rush Limbaugh have been quick to paint Elena Kagan as an "idealist" and a "radical," but her track record shows that clearly she is not.

With a straight face yesterday, Rush Limbaugh whacked Elena Kagan as a pure academic idealist radical. GOP party chair Michael Steele said senators must scrutinize her endorsement of the liberal agenda.

Hours after she’s been nominated, they’re trying to turn the Senate’s duty of "advise and consent" to a nomination into the power to "despise and prevent" her from getting on the court.

The reality is, Kagan’s appointment is more legitimately concerning to liberals than it is to conservatives. She has the hallmarks of being a cautious, small-bore pragmatist — not an activist left-leaning judge.

When being confirmed for the job of U.S. solicitor general, she agreed that certain Al Qaeda suspects could be held indefinitely without trial — even if they were captured off the battlefield.

She has said there is "no question . . . that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.’ "
She believes there is nothing wrong with government funds going to faith-based groups, provided they use that money for non-religious purposes.

She has flatly stated there is no federal constitutional right to same-sex marriage.
In her time as dean of Harvard Law School, she supported the controversial hiring of Jack Goldsmith, known for playing a key role in crafting the Bush administration’s interrogation policy.

Add it up, and odds are that, as a replacement for the liberal John Paul Stevens, she will drag the court modestly toward the center.

Still, lots of conservatives are itching for a little culture war to keep their base hot and bothered through the summer — so you’ll be hearing a lot about Kagan’s supposedly anti-military stand against allowing recruiters to set up shop at Harvard Law.

But the policy keeping recruiters off campus — because the military violates the school’s anti-discrimination policy toward gays — is in the mainstream of American law schools. And it applied to any recruiter with such a ban.

Agree or disagree with her move — and I disagree with it — it’s not radical, and neither is Kagan.
What she may be, however, is hard to pin down — since, for a Supreme Court nominee, she’s got a pretty thin paper trail and no experience as an actual judge.

Remember how Obama boasted that Sonia Sotomayor would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed?
Well, Kagan will bring less — because zero is smaller than any other number. So she needs to be forthright, not shifty, in hearings.

In a 1995 book review, she wrote that senators had an obligation to ask nominees probing questions about their views — and nominees ought to answer.

Let’s see if she meets her own standard.