At this rate, it won’t be long before the US Supreme Court becomes the sixth borough.
If confirmed by the Senate, Elena Kagan — President Obama’s choice to succeed retiring Justice John Paul Stevens — would be the third native New Yorker now sitting on the high court, along with Ruth Bader Ginsburg and Sonia Sotomayor. (Plus, Antonin Scalia grew up in Queens.)
So New Yorkers certainly have reason to be proud — though it’s too soon to say whether Kagan deserves confirmation.
Fact is, despite her notable achievements in academia, Kagan’s record of legal writings is slim, to put it mildly: just three law-review articles and a couple of book reviews.
She’s never served on any bench; for that matter, she hasn’t even practiced much courtroom law. Her background, though highly regarded, is almost exclusively in academia and government.
Certainly, from what’s known of her opinions, Obama could have done far worse, from our vantage point — indeed, most of the initial heat she’s drawn has emanated from the hard left, which had hoped for a more definitively activist nominee.
Kagan, for example, has said she does not believe there is a constitutional right to gay marriage, is not “morally opposed” to capital punishment and says terrorist detainees don’t have an automatic right to due process. And in 1997 she encouraged then-President Bill Clinton to support a compromise ban on late-term abortions.
On the other hand, she has declared the “don’t ask, don’t tell” policy “a moral injustice of the first order” — and used it as the basis for her shameful refusal to permit military recruiting at Harvard Law School when she served as its dean.
In other words, there is a real need for the Senate not to rush to judgment, and to elicit her views “on particular issues — involving privacy rights, free speech, race and gender discrimination and so forth — that the court regularly faces.”
Kagan should have no problem with having to meet that standard — considering it’s the one she herself once urged for all Supreme Court nominees.