With increasing numbers of the public wary of a Kagan confirmation, the left is looking for every possible reason to trumpet her acceptability to conservatives. While Kagan has, wisely, made friends on both sides of the aisle, no conservative thus far has gone so far as to claim she would be anything other than another solid liberal vote on the Court. The latest attempt has been to use Justice Scalia, darling of the right, and his well-known personal fondness for Kagan as an endorsement for her confirmation. But a closer look at his statements reveals that his statements are being stretched beyond their reach.
The Washington Post’s Greg Sargent has claimed that Kagan’s words of praise for liberal Israeli jurist Aharon Barak – calling him “my judicial hero” and “the judge who has best advanced democracy, human rights, the rule of law, and justice” were no more effusive than those of Justice Scalia himself. But Scalia limited his praise to showing “a profound respect for the man, one that trumped their fundamental philosophical, legal, and constitutional disagreements.” Obviously the praise is categorically different: Kagan praised Barak’s judicial accomplishments, achieved by methods Seventh Circuit Judge Posner described as “judicial hubris” and “creat[ing] out of whole cloth … a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Scalia did no more than offer respect for the man while differing with him on the issues. Scalia does the same with his own colleagues. He and Justice Ginsburg famously share a taste for opera, but only rarely are on the same side of a legal dispute. His friendship with and respect for her personally would never be confused with an ideological endorsement.
In another twist of Scalia’s words, Jeff Jeffrey at the National Law Journal wrote that Scalia approved of the president’s selection of a non-judge for a seat on the Supreme Court. But the reasons Scalia advocated appointing non-judges to judicial positions cut against Elena Kagan’s own confirmation. Criticizing a European system where judges follow a separate career track from other lawyers, Scalia opined “Can you imagine the kinds of judges that creates? People who have never been in private practice are judges. People who have never sued the federal government are judges. People who have never been on the other side of a case are judges.”
While Scalia personally seems to approve of Kagan’s nomination, his reasons for preferring a non-judge highlight precisely the type of experience Kagan herself does not possess. She spent a scant two years as a young law firm associate before entering academia, worked several years in policy positions in the administration, and has spent the last year as Solicitor General. She has (virtually) “never been in private practice.” She has “never sued the federal government.” And, apart from a total of three years in her 22-year career, she has “never been on the other side of a case.” Until last fall she had never argued more than a motion in open court, and she never had the experience of trying a case to judgment. This is not to say that any of these is the sine qua non of experience necessary for a would-be judge. But, as Ed Whelan put it, “Kagan’s record manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the manifold benefits of judicial experience.”
Kagan hosted a dinner at Harvard celebrating Scalia’s twenty-year anniversary on the high court, noting his accomplishment in promoting textualism and originalism, two approaches to the law that Kagan does not advocate. It appears she and Scalia at least share this feature: they are happy to give a pat on the back to a personal friend, even while disagreeing vehemently on substantive legal issues. Conservatives should take Scalia’s comments as just that: friendly support of an ideological opponent. Hardly a ringing endorsement.