Elena Kagan was nominated by President Obama to fill Justice Steven’s upcoming vacancy, but her lack of experience as a judge of any kind leaves a lot of questions about her views. 

Her other qualifications are easy to verify.  She was the first female dean of Harvard Law School, a legal scholar and professor at the University of Chicago Law School, the US Solicitor General, a Fellow at Williams and Connolly Law Firm in Washington D.C., served on the White House Legal Council from 1995-1999, and was a clerk to legendary Justice Thurgood Marshall.  

Her academic credits are extremely impressive.  She graduated from Princeton University, summa laude, from Oxford University as a Rhodes Scholar, and from Harvard Law School, magna laude.  

But the grand question is not her intelligence, which seems beyond question, but how she will stand on the great issues of the day.  There is some evidence that she is slightly right-of-center, although there are a few issues upon which she seems to lean more to the left.  Ultimately, this seems to be a nomination that will probably irritate those on the far left and the far right equally, although for different reasons.  

Here’s what we do know about her views. 

In 2001, as Harvard’s Dean, Kagan co-authored a law review article called “Presidential Administration,” in which she advocated expansion of the powers of the Presidential branch of the government.  

These beliefs aligned her more with the conservative arms of the Supreme Court, and empowered the types of unprecedented power grabbing like wire tapping and the Patriot Act committed by the Bush Administration.  

Hopefully once on the Supreme Court she will realize the dangers of adding any more power to the Presidential position.  Even if intentions are good, expanding the power will inevitably lead, sooner or later, to abuse of that power.  

In addition, she said during her Solicitor General confirmation that she believed the Government had the right to indefinitely detain anyone accused of being an enemy combatant.  This is aligned with conservative elements of the government that believe suspension of Constitutional rights is justified in fighting the war on terror. 

 Let me underline one thing here.  Suspension of Constitutional rights is never justified when your very job description is to uphold those rights, no matter what.  Supreme Court Justices are charged with defending the Constitution in the face of pressure the fore fathers could not have foreseen.  

 “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” Ben Franklin, from his Historical Review of Pennsylvania. (1759)  

It should also be noted that Kagan was paid by Goldman Sachs as an advisor, and this puts her at odds with understanding the typical American.  The typical American is so far removed from the world of big money banks that the distaste for such corporations is similar across different areas of the country and different party affiliations.  

The average American hates Goldman Sachs for what they and others like them did to the well being of the entire country.  Thousands are out of jobs and out of homes because of actions taken by these entities, and Kagan actually advised them!

So what about the evidence that she is more leftist, and will anger far right conservatives?  Well, the main one is her much talked-about decision as Dean of Harvard Law School to ban army recruiting on campus because of the army’s policy of “Don’t Ask Don’t Tell.”  This has led some to call her “anti-military,” but upon closer inspection, that isn’t the whole story.  

 Harvard had a policy at the time of not allowing recruitment from any employer on campus that did not have comprehensive anti-discrimination policies.  The army is, among other things, an employer, and the “Don’t Ask Don’t Tell” policy is hardly anti-discriminatory.  

When push came to shove and federal money was threatened to be withheld from the university, Kagan relented and allowed recruiters on campus.  She is not, apparently, unwilling to compromise when hard decisions have to be made, and did not join the other faculty that attempted to sue the government over the law that allowed federal school funding to be tied to army recruitment.  

Another interesting statistic regarding her position as Dean is her hiring of 29 tenured faculty members, or rather, the nearly homogenous mix of faculty that she hired.  Of the 29, only one was non-white, and only six were female. 

This is rather circumstantial, however, as the people reporting this don’t have information about who was the most qualified in her stack of applications. Harvard has a record of hiring only the most qualified people in their fields, and without detailed application information it is impossible to know whether discrimination took place. 

She has challenged the Defense of Marriage act by saying she thought it was discriminatory and hoped to overturn it.  Regardless, she has defended the law.  

The other issue is her lack of judiciary experience.  That too, is not exactly as it seems.  Many people don’t realize that the U.S. Solicitor General is considered to be the unofficial “10th Justice,” with stature among the legal community right under the justices as both influential and knowledgeable in the area of constitutional law.  

What really bothers people is her lack of a paper trail.  It makes people nervous when they don’t know what you stand for, and any little thing in that situation can be grabbed onto and over analyzed. A thesis she wrote thirty years ago says little about her views now.  Many people have views that have changed drastically from the age of 21 to 50.  

There is a lot of speculation about her personal life as well. She is not married and has no children, but that doesn’t necessarily mean she’s gay!  Women that aggressively pursue careers and higher education often make the decision to forego conventional married-with-children-type lives. Of course, it doesn’t mean she’s not gay either. So what does any of that matter?  Although it would be politically correct to say that Kagan’s sexuality wouldn’t matter, the truth is that it would matter....a little.  

If she was gay, her perspective would be different when the Defense of Marriage Act comes under scrutiny, which it already has and will continue to.  But one would be foolish to think that Justice Sodomeyor’s cultural background wouldn’t affect her decisions in any way in the area of immigration policies.  Everyone is influenced by their personal experience, but that is why we have 9 Justices of different backgrounds, rather than 2 or 3 of the same background.    

It should be noted that the White House has issued a statement that Ms. Kagan is not gay, and there are no reliable sources that would lead one to believe she is.  

Ultimately, it will be up to Congress to decide whether Kagan is the right woman for the job. Some are so anti-Obama that they will turn down anyone he picks, just on principle, and some have legitimate concerns about the nomination.  

On the plus side, if Kagan is appointed, the highest court in the land will have three women serving on it for the first time in history.  Kagan is young and will most certainly shape the policies of the court for many years, so it is important that her nomination is closely scrutinized from all angles, and if I know this Congress, I’m sure it will be.