Kagan '81: Closet Conservative? Why Some Liberals Fear Her.

On Sunday, we mentioned that Solicitor General Elena Kagan ’81 is on President Obama’s shortlist of candidates under consideration to fill retiring Justice John Paul Stevens' seat on the Supreme Court.But, really, if chatter among the punditry is any indication, she’s the woman to beat. (After all, everyone thought Obama would choose Sonia Sotomayor ’76 after Justice David Souter retired, and Obama did just that.)Kagan was on the shortlist last year when fellow Princetonian Sotomayor was ultimately chosen, and now with another court vacancy, SCOTUSblog has declared Kagan “the prohibitive front-runner.” In March, CNN and New Yorker legal correspondent Jeffrey Toobin told NPR, “I think it's going to be Elena Kagan...” Conservative Bill Kristol also thinks it'll be her and even told Fox News, "I endorse Elena Kagan." Senator Lindsay Graham (R-SC) added onto the praise heap saying, succinctly, "I like her."So much love! But such bipartisan praise for the first female Solicitor General has made liberals suspicious and has failed to assuage emboldened conservatives who are painting Kagan as a radical. In fact, the paranoia among both liberals and conservatives is pretty striking. Consider the following:

• Last May, the conservative Weekly Standard pointed to Kagan's 156-page senior thesis as evidence of a radical agenda (she wrote about socialism in New York City at the start of the 20th century)--a claim that her thesis adviser, Professor Sean Wilentz, later denied in an interview with Salon. The Weekly Standard was also spooked by an op-ed she'd written in the Prince, in which Kagan lamented about the conservative revolution in light of President Ronald Reagan's 1980 election. Further, because Kagan has never been a judge, her lack of an extensive paper trail has raised eyebrows: "What little we know about her positions are distinctly out of the mainstream,” the chief counsel of the conservative Judicial Crisis Network told Bloomberg News.

• Meanwhile, many liberals have been up in arms about Kagan as well. Salon's Glenn Greenwald writes that appointing Kagan to the Supreme Court would "move it further to the Right." In particular, he says Kagan's views are "closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law." Greenwald says that he fears Kagan could become the Democrats' Justice David Souter--a George H.W. Bush-appointee who turned out to be a reliable liberal vote.

The liberal American Prospect's Scott Lemieux also sounded the alarm, writing:

Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal...

Specifically, as the conservative National Review notes, Kagan has been a strong advocate of the "state secrets" doctrine to preserve the NSA's Bush-era surveillance program. She's also suspected of being involved in the Obama administration's decision to continue Bush's policy of using military commissions (instead of civilian courts) for trying detainees, as well as the administration's refusal to release photos of alleged prisoner abuse.Liberals argue that Obama should appoint an assertive liberal in Stevens' mold, pointing out that Stevens' seat has been held by just three people so far--all of them liberal lions of the Court: Justice Louis Brandeis, Justice William O. Douglas, and Stevens. As one person told the New York Times last May,

Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role.

Adding ammunition to liberals' concerns, the same article quoted Kagan's former colleague in the Clinton administration who said,

There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed ['82].

While Kagan's views on Executive Branch powers may give liberals heartburn, her record on social issues may help temper their fears. As dean of Harvard Law School, Kagan was a passionate critic of the 1996 Solomon Amendment, a law permitting the government to cut off federal funding for universities that prohibit military recruitment. Citing the military's "Don't Ask, Don't Tell" policy banning openly gay and lesbians from serving, Harvard Law had banned recruiters from its campus.Kagan signed onto an amicus brief in the Supreme Court case Rumsfeld v. Forum for Academic and Institutional Rights (2006), which argued that the Solomon Amendment restricted a university's free speech. In an 8-0 decision, however, the Supreme Court rejected the claim. In the decision's aftermath, Kagan wrote to the school:

I believe that policy is profoundly wrong — both unwise and unjust...and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.

But despite such displays, it's unclear they're enough to convince some liberals that Kagan deserves a spot on the Supreme Court. Regardless, here at The Ink, we're partial towards Kagan--but mostly because she'd be the third consecutive Princetonian appointed to the high court.