Obama’s second Supreme Court nominee clerked for one of history’s greatest racial justice champions. You wouldn’t know it by looking at her career since.
Despite all the hubbub Solicitor General Elena Kagan’s Supreme Court nomination will generate, the truth of the matter is Kagan won’t make much difference to a judicial balance of power that leans rightward. She’ll maintain the status quo: four reliably liberal justices, four reliably conservative justices and one center-right swing voter in Justice Anthony Kennedy. Importantly, that means she will also do little to alter the court’s rightward trajectory on racial justice.
Both Kagan and the White House have made much of her time as a clerk for her self-described mentor, Thurgood Marshall. The hapless Republican National Committee has responded with a bizarre effort to tar her association with one of history’s most celebrated justices. But both sides overstate the connection. Kagan hasn't exactly spent her career as a champion of the racial justice principles Marshall articulated. We need to be asking why that’s the case.
As a Democratic president’s nominee, to be confirmed by a Democratic Senate, we can expect a would-be Justice Kagan to align herself consistently with the liberal voting bloc. After all, today’s Supreme Court appointments rarely let down the presidents who nominate them. Sure, David Souter—whom a wise Latina replaced last summer—was the bane of George H.W. Bush’s existence because of his pro-choice opinions. And retiring Justice John Paul Stevens certainly grew, during his three and a half decades on the court, to become a disappointment for President Gerald Ford’s legacy. I just don’t see that happening to our current constitutional-law-professor president.