Elena Kagan Will Not Shift to the Right

Until recently, a persistent problem that plagued Conservative presidents was that their Supreme Court appointees tended to drift Left, sometimes far to the Left, during their tenures. Currently retiring Justice John Paul Stevens, appointed by President Gerald Ford, represents a prime example.

Stevens likes to argue that he has been rock of consistency while the stream of the country has moved to the Right. Stevens self-portrayal would be more persuasive if he had not shifted positions on so many important issues. As Stuart Taylor of the National Journal has pointed out: Stevens was originally against racial preferences and now regularly decides in favor of them. Stevens originally believed that the death penalty was Constitutional, now he does not. From defendants’ rights to Medicaid Abortions, Stevens has slid inexorably to the Left.

Perhaps the most obvious indication of Stevens’s change in perspective is that he waited until Barack Obama became president to retire. He could have left the Court at age 88 under President George W. Bush just as easily as retiring now at 90. By any political calculus, President George W. Bush is closer to President Gerald Ford than President Barack Obama. By his deliberate selection of retirement date, Stevens, in effect, decided he wanted a Liberal judge to succeed him.There is nothing ignoble about changing one’s mind, especially if one can articulate cogent reasons for the changes. but it is disingenuous for Stevens pretend that he really has not.

There are many reasons for the traditional shift to the Left. The Washington establishment, national press, and law schools are quick to lavish praise on Conservative justices that“grow” or “evolve” in office — so long as the growth is to the Left. Everyone enjoys being held in esteem and it hard to underestimate the effect of rave or negative reviews over the long run. Perhaps the largest factor in shifts to the Left is the inherent temptation of the law for judges: the temptation to morph the law to achieve what a judge believes is a positive social outcome.

This temptation is so great, that for a Constitutionalist judge to maintain fidelity to the Constitution, he or she must bring to the Court at least two qualities. First such a judge needs the intellectual conviction, that the job of the judge is interpret and apply the law, not make wise policy and the humility to believe it. Specifically, he or she must have a “judicial temperament.” Second, a Conservative judge that maintains his or her position over time must have the intellectual power and familiarity with the law to withstand years and decades of debate with equally intelligent justices.

Justices John Roberts and Sam Alito were chosen for these qualities. The choice of Harriett Meyers by President Bush was met with consternation by Conservatives, which largely undermined her nomination, precisely becaue she possessed none of these qualities.

How then should we consider the nomination of Elena Kagan? She qualified by her legal background, but has little judicial experience. She is, to a large extent, a “stealth” candidate. Her positions, save on a few issues, are not conspicuous. Liberals do not have worry t she will be pulled to the Right. There is few in Washington tugging in that direction. More likely she will begin with mainstream Liberal positions and slide further to the Left. She will be lauded by the press as for her intellectual stature and her concern for the least fortunate. She has not been a judge and therefore has little time to develop a judicial temperament required for Constitutional fidelity. Judging from her picture on the cover of the Wall Street Journal, her only inclination to the Right is her rather good batting stance.

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