President Barack Obama chose U.S. Solicitor General Elena Kagan, who was the on the top of everyone’s predictive “short list,” as a candidate for nomination to the U.S. Supreme Court. As an attorney, professor, White House counsel, Harvard Law School dean, and U.S. Solicitor General, Elena Kagan has led a charmed life in the law to this point.
Commentators wrinkle their brows about her alleged lack of a public record that would reveal her legal philosophy and her positions on issues. However, she has produced more than enough in print to allow us to infer her likely approach as a U.S. Supreme Court justice. That record reveals something that mainstream pundits will not admit, lest the real game be given away. Attorney Kagan adheres to a philosophy called “legal positivism” and applies its worldview to her interpretation of the U.S. Constitution. Through the lens of the legal positivist, law has no fixed truth, but must be re-invented and bent to fit the changing needs of society. She has also associated throughout her life with lawyers, judges, and politicians who favor that position.
Elena Kagan has careened from one privileged post to another during her post-law school career, as law clerk, professor, law school dean, and U.S. Solicitor General. However, she has never served as a judge, even in traffic court. This lack of judicial experience has worried professionals and non-lawyers alike. However, the Standing Committee on the Federal Judiciary of the American Bar Association, a powerful insider lawyer lobbying and educational group, has rated her “well qualified” by unanimous vote. No surprise there.
A July Rasmussen poll found that 42 percent of the American people oppose Kagan’s nomination, while only 36 percent favor it. Senators would normally look at such numbers and vote accordingly. In an age of political arrogance, the will of the people may have no relevance, as confirmed by Rasmussen’s figure of 87 percent who say that Elena Kagan will likely be confirmed as the next Supreme Court justice.
