Why should Elena Kagan be nominated to be the next Supreme Court Justice, and why might it not happen?
Kagan should be nominated because she is the best candidate. Praised as brilliant by both progressives and conservatives, she will be a great supporter of the Constitution. She is known as a fierce advocate of first amendment rights.
She has established a reputation of working well with conservative colleagues, and might be able to persuade Kennedy every once and a while to abandon his four arch-conservative co-conspirators and to vote with the side of reason occasiionally, and she has the writing skills (honored by the American Bar Association for her work published in the Harvard Law Review) that can help to craft majority decisions. As a former law clerk of Thurgood Marshall, she of course is a staunch defender of civil rights, and it would be a fitting tribute to Marshall's legacy if Kagan had the opportunity to work to extend anti-discrimination statues to be applicable to gay rights as well. Why should it be okay to not rent an apartment to someone because they're gay? Why should a lesbian be shut out of a job based on who she likes to date outside of work? Why should hate crimes against gays be tolerated? Why should tax benefits be available through the legal sanctioning of opposite-sex couplings, but not those of same-sex partners? These are topics that a thinking, caring, and persuasive Supreme Court Justice can have an impact on. In her tenure as Dean at Harvard University, Kagan supported a ban on military recruitment on campus because of the discriminatory Don't Ask, Don't Tell policy, and thus one should expect her to be a supportive voice on the Court for equal rights for all, regardless of sexual orientation.
Why might Kagan not get nominated to replace Justice Stevens? It all comes down to politics. The weird part about this is not that it might be hard to get her nominated, but rather that it might be too easy.
It may behoove the Democrats for the Republicans to filibuster the nomination. The Senate would probably have hearings and voting in the September 2010 time frame, just weeks before the November midterm elections. If a more controversial nominee like Diane Wood (who has issued rulings from the bench strongly in support of abortion rights) were put up, the Republicans would be under pressure, and not just from Democrats. They will feel it from all sides.
On the one hand, if they don't filibuster, then it would really piss off their base - the 'forced-birthers' who oppose the right for women to control their own bodies. These folks will be turned off and may not show up at the polls in quite their usual numbers; they may well reduce their financial support as well if they don't see the Republican leadership buckle to their will. It will deflate their expected election argument that people should vote for them in order to vigorously block Obama's agenda - how can they be expected to do what they say in the future, if they're not even doing it at the same time they're saying it?
On the other hand, if the Republicans do in fact decide to filibuster the nomination, then they would be bringing the argument that the 'Republicans are the Party of No' to the forefront of the national political discussion at the absolutely worst time - right before the November midterm elections! This would be a big problem in any Republican attempt to persuade independent voters, who would have Republican intransigence thrown in their face on the evening news; even the mainstream media would be reporting on the filibuster drama (which could be made all the more dramatic if Democrats force the Republicans to actually filibuster from the floor, something they have the power to demand). This could help fend off the losses that are typically seen in midterm elections.
The other reason President Obama may choose not to nominate Ms. Kagan is that his next nomination may be made to replace one of the Reactionary Five of Scalia, Thomas, Alito, Roberts and Kennedy. In that situation it will be even more crucial to assure that the nomination gets through. It would be very, very hard to filibuster the choice of Ms. Kagan after her having already been approved by the Senate to be Solicitor General. So if we hear a name different than Kagan on Nomination Day, it's probably because Barack's keeping his trump card tucked away in his back pocket for a rainy day.
(The above article is a reprint from my blog on Jeroly.Com of April 9, 2010.)