The Real Danger of the Kagan Nomination

It’s only been a few hours, but the debate surrounding Elena Kagan’s nomination to the Supreme Court has already heated to a near-boil.

Over at National Review, Ed Whelan is riffing on Kagan’s lack of real world experience; her exclusion of military recruiters from Harvard Law School’s campus; and her brief stint as an adviser to Goldman Sachs. These nuggets, Whelan concludes, establish Kagan’s “unfathomable remoteness from ordinary Americans.”

Whelan’s not all criticisms. He likes that “Kagan shows signs of moderation on issues of presidential power and national security.” But these positions, which include her affirmation that al Qaeda financiers should be subject to “battlefield law” (a.k.a. indefinite detention) have drawn criticism from commentators on the left. In a piece published today on our front page, Marjorie Cohn called Kagan “a loyal foot soldier in Obama’s fight against terrorism.” And over at the Washington Monthly, Steven Benen raised questions about her “unstated political philosophy.”

Kagan’s philosophy may be ambiguous, but it’s not altogether unstated. Kagan is, after all, an accommodator. Like Obama, she is a consensus builder, not a hard-line activist: She’s pro-abortion rights but also pro-death penalty; she hates DADT, but has expressed support for the Defense of Marriage Act as well.

Glenn Greenwald explains why this particular feature of Kagan’s personality — more than her opinions on individual issues — ought to raise red flags for progressives.

It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court.  Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.  The Obama administration is filled to the brim with exactly such individuals — as is reflected by its actions and policies — and this is just one more to add to the pile.