First, a disclaimer. I likely hold several views ideologically opposite of those held by Elena Kagan, so I approach this issue with that bias. Moreover, it appears that she will sail through the confirmation vote with flying totals due mostly to the Democratic Supermajority Less One. Still, I feel there are a few pertinent reasons why Ms. Kagan is not the ideal candidate for the Supreme Court that some have painted her to be.
First, Ms. Kagan has never been a judge. Her supporters continually skirt this issue by pointing to the fact that she has served in other positions traditionally held by Supreme Court appointees: judicial clerk, academia, and public offices. However, this fails to recognize that none of these positions perform the same task as a judge. A clerk is usually told what to do, where to look, and what to search for. An academic can wield significant influence in presenting personal opinions, through teaching and writing, that sometimes go unchallenged. A public servant must represent the views of the government. Even in her current, and arguably most prestigious, post of Solicitor General, Ms. Kagan is bound to always argue and support the position of the Obama Administration. A judge must fairly and impartially apply existing law and precedent in evaluating the case presently before him or her. While I have no doubt that Ms. Kagan is far more intelligent than I, lacking a clear record of judicial rulings, it is nearly impossible to trace her fair, impartial legal reasoning. I am not sure how the ABA can deem her "well qualified" in this area aside from mere guesswork and supreme optimism. Simply having been a teacher does not make me "well qualified" to be Secretary of Education and run a government department, but perhaps the ABA would endorse me.
Second, even more glaring in the absence of such rulings, Kagan repeatedly declined to answer questions directly in the nomination hearings. Her supporters repeatedly referred to her as intelligent and possessing a sense of humor. Clearly, what the Supreme Court has lacked all these years is a stand-up comedian. Call me crazy, but I would much prefer to know a nominee's legal reasoning than be entertained by her sense of humor, but if I was a senator I would have been in the minority on that one apparently.
Third, Kagan marks the second straight judicial nomination for President Obama (after Sonia Sotomayor, of course) who is childless. Now, as a man, I am sure I will be barking up the wrong tree here, but it seems to me that it is much easier for a woman who has never been through the birth process to rule that abortion should remain legal. One such nominee is merely interesting, but two in a row suggests a pattern that Obama may continue if given the chance.
Finally, haven't we dealt with such a nominee before? Flash back to 2005, when President Bush nominated Harriet Miers. There were howls of how she was unqualified, how she was a political flunky that would do whatever Bush wanted, and how it was so outrageous. Kagan shares many parallels with Miers (aside from graduating and working in the Ivy League, which is becoming basically a prerequisite for becoming a SC justice, however irrelevant that may be). The response this time? Very few mainstream media outlets have said any of those things about Kagan. I think a major reason that Obama picked Kagan is so that he could have someone on the Court who thinks very similarly to him.
Where is the outrage? Apparently, it was almost entirely spent on the Bush Administration. Though Obama has done several questionable things as well, fewer people are holding his feet to the fire. Sadly, the country will not improve significantly until more people start holding this president accountable for his decisions.
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