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Monday, October 25, 2021

Kagan’s Supreme Court nomination yields warm reception among UCD professors

Last Friday’s Washington Post Q&A analyzed her sexual orientation. On May 17, Sen. Jeff Sessions (R-Alabama) blasted her for restricting on-campus military recruitment at Harvard Law School. Politicians have fretted over her lack of judicial experience.

In lieu of such scrutiny, the vetting process has fully embroiled Solicitor General Elena Kagan, whom President Obama officially nominated last Monday to the Supreme Court to replace retiring justice John Paul Stevens.

At the heart of the current countrywide debate are two key points of contention: Kagan’s lack of actual judicial experience and where she stands on the political spectrum.

UC Davis professors said Kagan has plenty of experience to take on the job, citing her career in academia, solicitor generalship and her understanding of law.

“Many justices have not previously served as judges,” said UC Davis professor of law Carlton Larson. “When the Supreme Court decided Brown v. Board of Education in 1954, none of the members of the Court had previously served as judges. Some of our greatest justices, including Chief Justice John Marshall and Chief Justice Earl Warren, had no prior judicial experience.”

In an e-mail interview, Professor Amar Vik at the UC Davis School of Law said Kagan gained valuable experience in her earlier days by clerking at the Supreme Court.

“Remember, many super-successful justices – Earl Warren, Rehnquist, Hugo Black and others – had no meaningful prior judicial experience before going on the court,” he said.

According to UC Davis political science professor John Gates, the practice of nominating individuals with prior judicial experience is relatively new.

“Since the nomination of William Rehnquist in 1971 [every Supreme Court nominee] has had experience as a judge at some point in their career,” Gates said.

The other side of the political debate has largely taken place around Kagan’s political stance, or lack thereof. While some professors such as Vik say she is a moderate progressive, others are unsure how she would vote on the court.

“With rare exception, Elena Kagan has avoided entering the public fray on the important issues of the day,” said UC Davis School of Law professor Anupam Chander in an e-mail interview. “We thus have limited ability to predict how she will rule over the next few decades as a justice.”

At Harvard Law School, Kagan, now 50, served as the university’s first female dean, after which she was selected as Solicitor General of the Obama administration. As an academic, she’s known to specialize in issues regarding First Amendment rights and has written articles on freedom of speech and expression, though some say her published contributions have been few and far between.

Before serving as a domestic policy advisor for the Clinton Administration’s second term in office, Kagan taught at University of Chicago Law School, under which she also published her most well known academic work, “Private Speech, Public Purpose.”

As the Boston Globe reported late last week, Kagan and Obama have frequently crossed paths in their professional lives, both having attended or taught at Harvard and University of Chicago.

“While they are not close friends, they have maintained their relationship over the years through common outlooks on politics and law,” The Globe reported.

Students informed on the matter commented to the same effect.

“Elena Kagan’s been very good about not taking a stand on anything,” said Rajiv Narayan, a sophomore critical economics major. “It seems like we’re requiring people who have never made judgments before to make the most important judgments for the country.”

If confirmed by the Senate, Kagan will serve as the United State’s 112th justice. For some UC Davis academics, the question of confirmation is obvious.

“I doubt there will be any need to turn to a back-up plan,” Chander said.

Gates said presidential nominations to the Supreme Court are rarely rejected by the Senate and there are few controversial confirmations

“Only when the Senate majority is different from the president and the president is in the fourth year of their term does the probability of rejection dramatically rise,” he said. “Neither condition is present with this nomination.”

YARA ELMJOUIE can be reached at city@theaggie.org.

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