Courting Kagan

OK, she's Ivy League ... formerly dean at Harvard Law even ... but let's not hold that against her. Harvard Law graduate Barack Obama is not the first president who appears to believe that only the Ivies are worthy sources of justices, as evidenced by the fact that when she's confirmed, SCOTUS will be All-Ivy-All-the-Time.


At least while she was deaning there, Kagan did try and keep military recruiters out as an objection to the "Don't ask, don't tell" policy. The fact that conservatives will go bananas over that during Senate consideration will be fun to watch. She was also, as the president pointed out, a real consensus-builder, someone with "an appreciation for diverse views,” described as having an "openness to a broad array of viewpoints.”

She would become, at age 50 (which, as we all know, is “the new 30”), the youngest member of the court. But this child prodigy has accumulated a distinguished fast-track record — and not just the Harvard thing. She's solicitor general currently, often called the Supremes' "10th justice.”

She got off to one hell of a start, clerking for the titan Thurgood Marshall, and she's had various policy roles at high levels of the Clinton administration. Still, her critics are already charging she has a relatively thin résumé, and they can be expected to hammer at that.

What does look good on a CV is an entry like "She plays well with others.” Kagan is one of those, someone who can argue without fighting, who achieves compromise and, most importantly, has a sense of humor. That alone sets her apart from most of the people in this city of sharp ambitions and dull characters.

She's never been a judge, which can be construed as a good thing, because every one of the other justices did come up through the judicial farm system. It'll be good to have someone who didn't.

Yeah, yeah, I know: The polls say that people would prefer someone with judge experience, but why is that essential? At the lower bench levels one must follow the dictates from on high. Kagan and the gang are the on high — the dictators, not the dictatees.

Obviously, the fact she's a woman works in her favor. She's already got a few "firsts" on her record: First female Harvard Law dean; ditto for solicitor general. Assuming she gets past the oppo research and Senate posturing this summer, the Supreme Court will have three female members in October. The first time that'll be.

Three of the nine ... a full one-third! Wowee zowee! What a milestone! Considering that our population is roughly half-female, it doesn't break the robed ceiling, but it is progress.

Back to her non-judge résumé: It means she doesn't have much of a judicial record for the Republicans to chastise. Of course, her lack of writings about the various flash-point issues of the day will not only make the right nervous, but will also concern those on the left who dearly want one of their own to replace John Paul Stevens. In fact, they worry that Kagan seems to come down on the side of government and presidential power and legal restraint far too much ... just like her nominator President Obama does, to their consternation.

Let us not forget, though, you never know how a justice will veer. Stevens, the darling of Democrats, was chosen by a Republican, Gerald Ford. That's what makes the Supreme Court such fun. You sometimes can't predict what direction its members might wander. And these days, to get past their hearings, the prospects aren't willing to give the slightest hints.

Not that everyone won't try to get a glimmer. This summer it’s Elena Kagan up for the attempted dissection. As important and entertaining as it is, all of this raises a much more compelling question for the president: Is there any way someone can get Scalia-Thomas-Roberts-Alito-Kennedy to retire?



Visit Mr. Franken's website at www.bobfranken.tv.