Let summer of grilling

Let summer of grilling

begin for Elena Kagan

By all accounts, U.S. Solicitor General and U.S. Supreme Court nominee Elena Kagan is no shrinking violet.

She’ll need that thick skin this summer as she faces fiery grilling from U.S. senators, from politicians from all spots on the political spectrum and from all Americans concerned about judicial aptitude and philosophical balance on the nation’s highest and most revered court.

President Barack Obama on Monday nominated Kagan — the administration’s 50-year-old point person in arguing cases before the court — to become the 112th justice to sit on that court.

As the nominating process begins, we must respect Obama’s selection because we respect Article 2 of the Constitution that empowers a sitting president to select the nominee of his or her choice. Barring any fatal flaws in Kagan’s character or background or any serious doubts about her ability to perform the arduous tasks of an associate justice, we enter the confirmation hearings with open arms and an open mind.

But we’ll withhold final judgement on the appropriateness of the nominee until we — like the rest of America — learn more about her background and philosophies that likely could wield an impact on American jurisprudence for three or four decades to come.

Unlike most other Supreme Court nominees, Kagan lacks a judicial paper trail. She is the first justice to be nominated for the highest court in nearly 40 years who has no background sitting as a judge at any level of government. As such, there are no reams of personally written rulings to pore over as a means to shed light on her style and attitudes in interpreting law.

Some argue that such lack of judicial experience in and of itself should disqualify her from confirmation. We disagree.

Though Kagan has never officially donned the robes of justice, few would deny she has learned full well the ropes of justice. Her curriculum vitae documents that she is a constitutional scholar of the highest order, having earned a juris doctorate degree from Harvard University, having served as a clerk to the distinguished Justice Thurgood Marshall and having served as the first female dean of the Harvard School of Law.

An asset?

Indeed her lack of time spent sitting on a bench could be viewed as an asset. Instead of spending years cloistered in stately chambers writing legalese opinions, she has spent decades deeply engaged with the world around her and the myriad legal issues within it. As for precedent, the last Supreme Court justice without judicial pedigree before confirmation was William Rehnquist. He rose to become one of the most respected chief justices in U.S. history.

Others will argue that her tendency to keep her views close to the vest leaves too many question marks about her aptitude and her ability to bring greater philosophical balance to the rightward-tilting court.

Though she has said that she respects precedents on abortion and on George W. Bush-era standards on trying cases of suspected terrorists, she has opened up little on a host of cogent issues, including gun rights, racial preferences and profiling and private-property rights.

Fortunately, the Constitution provides a convenient and effective outlet for getting answers to such questions in the form of confirmation hearings before the Senate Judiciary Committee. They’re bound to bring a summerlong television series of conflict, contentiousness and, with luck, elucidation on the appropriateness of her nomination.

The qualities that inspired Obama to select her — an intelligent and pragmatic consensus builder who pleases and angers Republicans and Democrats alike — will be tested for the nation to see and digest.

Toward that end, let the grilling begin.