Surprising Reactions To Obama's High Court Nominee

Elena Kagan, tapped by President Obama on Monday to replace the retiring Justice John Paul Stevens, now heads into the confirmation process. But — she has little for the Senate Judiciary Committee to scrutinize. She has never served as a judge, and the collection of her academic writings is slim. This absence of material leaves liberals, like University of Colorado law professor Paul Campos, worried about where she will stand on the key issues expected to come before the court in the coming years. Meanwhile, this uncertainty, and her past warmth toward conservatives, gives some on the right hope. Conservative UCLA law professor Stephen Bainbridge believes Kagan is the best nominee Republicans could hope for from Obama. Both Professors Campos and Bainbridge join guest host Allison Keyes to talk about their positions on Kagan.

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ALLISON KEYES, host:

I'm Allison Keyes, and this is TELL ME MORE from NPR News. Michel Martin is away.

The vetting of Supreme Court nominees is, shall we say, a challenge. Members of the Senate Judiciary Committee pick apart just about every public word that the nominee has spoken, as well as everything they've published.

Elena Kagan, tapped by President Obama on Monday to replace the retiring Justice John Paul Stevens, now heads into this process. But she has little for the committee to scrutinize. She's never served as a judge and the collection of her academic writings is a little slim. This absence leaves liberals like University of Colorado law professor Paul Campos worried about where she'll stand on the key issues expected to come before the court in the coming years. He argues against her confirmation in a piece this week on TheDailyBeast.com.

Meanwhile, this uncertainty and her past wants toward conservatives give some on the right hope. Conservative UCLA law professor Stephen Bainbridge believes Kagan is the best nominee Republicans could hope for from Obama and he's supporting her.

Both Professors Campos and Bainbridge join us now to talk about their positions on Kagan. Gentlemen, thanks for being with us.

Professor PAUL CAMPOS (Law, University of Colorado): Good to be here.

Professor STEPHEN BAINBRIDGE (Law, University of California Los Angeles): Thank you for having us.

KEYES: Professor Campos, let me start with you. You've described yourself as a Democrat and a liberal, although a moderate one and you've said you're disappointed that President Obama picked Kagan. She's a former dean at Harvard Law. She's currently U.S. solicitor general. What's your issues with her confirmation?

Prof. CAMPOS: A couple of things. I, in principle, don't have anything against someone being nominated to the Supreme Court who has never been a judge before. But when you have that situation and therefore of course you don't have any judicial opinions to evaluate in regard to that person, I think there is a special evidentiary burden that has to be met in terms of what this person's beliefs are about law, about specific legal issues, about the act of judging, interpreting the Constitution, statutes and so forth. And also their background political beliefs, which inevitably at the level of Supreme Court decision making, have to have a significant effect on the decisions that the person makes.

In Kagan's case, there simply just isn't a record for the basis of being able to judge these things. Her academic writings are quite scanty and those that do exist essentially don't address any of these questions in a way that we can usefully evaluate her for the purposes of the confirmation, for the confirmation process. So she's a blank slate, and I don't think we should be choosing people who are blank slates to be on the Supreme Court simply because the president says that she's a really smart person and a really good individual and works well with people, which is essentially the argument for her at this point.

KEYES: But Professor Bainbridge, you've said you feel you know enough to make an informed decision about her and you support her. What are you basing that on?

Prof. BAINBRIDGE: Well, I wouldn't say so much that I support her, as it is that I don't oppose her. In some respects, I came to that conclusion on the old aphorism that the friend of - the enemy of the enemy is my friend. The people that are opposing Professor Kagan, and here I'm not necessarily including Professor Campos, but many of them are on the far left of the legal academy. And the reasons that they are opposing her are reasons why I think she probably is a fairly moderate person.

They're complaining, for example, that she didn't hire enough minorities and women when she was dean at Harvard. They're complaining in other words that, you know, she didn't use affirmative action aggressively enough. They're complaining about some of the conservatives that she hired at Harvard. They're complaining about the fact that, you know, she went out of her way to make Harvard a place that was more ideologically diverse and more welcoming to people who were conservative. And all of that, I think, bodes well for those of us who hope that this will end up being a fairly moderate appointment.

And I would just like to comment that I don't think it's fair to say that Elena Kagan is a stealth nominee. I mean, she's worked in two Democratic administrations. She's been the dean of a major law school. I think that if you can't figure out what her general sensibilities are, you really haven't been trying very hard.

KEYES: Professor Bainbridge, hang on for a minute. Professor Campos, you've actually written that this decision makes a mockery of President Obama's pledge to strive for openness in government. What exactly do you mean by that?

Prof. CAMPOS: I mean that when making a decision of this sort, it's absolutely imperative that both the Senate and the American people have a sufficient basis for being able to judge the selection and to say, yeah, we agree with this or no we don't and here's why. Instead what we have is a choice of a nominee who simply doesn't have the kind of record that we need to be able to make that kind of judgment. Now, yeah, I agree with Professor Bainbridge that we can say with some confidence that she's a Democrat. She has been after all worked in two Democratic administrations, as he pointed out.

But the Democratic Party is a very wide swath of the American political landscape. I mean, Joe Lieberman is a Democrat, sort of. And Russ Feingold also in the Senate as a Democrat and there's they agree on almost nothing and they are both in, you know, in the same party. And I don't know whether in fact Elena Kagan is going to be more liberal than Justice Stevens who she's replacing or more conservative or roughly about the same.

In other words, we don't know whether she would move the court to the right, which she might very well do, given how little we know about her record. Unfortunately, I think President Obama has made a choice which does not allow us at this point to say that it's the kind of choice that progressives and liberals would have liked to see and could have reasonably expected in this situation.

KEYES: You're listening to TELL ME MORE from NPR News. We're talking about President Obama's Supreme Court nominee Elena Kagan with law professors Paul Campos and Stephen Bainbridge.

Professor Bainbridge, before I come back to you, I just want to say, yesterday Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee was interviewed about her nomination on CNN.

(Soundbite of news clip)

Unidentified Man: Is never having been a judge a disqualifier for you?

Senator JEFF SESSIONS (Republican, Alabama): No, it's not. But I do think a person who's had very, very legal experience in terms, I think about two years of private practice and no judicial experience, mainly her career has been in academics, even as dean at Harvard where you certainly don't have time to practice law. You're more of an administrator. That kind of experience is weak in her case, there's no doubt about it.

KEYES: Professor Bainbridge, what do you think about that? Do you need judicial experience to sit on the Supreme Court?

Prof. BAINBRIDGE: No, I don't think so. I mean, I think William Rehnquist, Byron White were great judges, neither justices neither of whom had, if I'm remembering correctly, judicial experience. I think, you know, you have people like going back, Robert Jackson and Stanley Reed, who were good judges on the Supreme Court, who came out of backgrounds very similar to that of Elena Kagan - attorney general in one case, solicitor general in the other. And I think that, you know, I'm empathic to Professor Campos's position, having been one of Harriet Miers chief opponents on the conservative side and feeling much the same frustration with the lack of a paper record.

But I do think that Kagan is considerably better known in political circles than, say, Harriet Miers was. And the other point, of course, is that Kagan has gone through the confirmation process to become solicitor general. That record is certainly available. She will go through an exhaustive confirmation process. Again, as a Supreme Court nominee, in which much of her background and the kind of information that Professor Campos wants can be elicited.

KEYES: Wait, I need to interrupt you and let Professor Campos get in for a minute because you've actually compared Kagan to Harriet Miers. What do you think of the similarities between the two?

Prof. CAMPOS: I think some of the similarities are striking and the ones that are relevant are the precisely the ones that Professor Bainbridge was focusing on when he was opposed to the nomination of Harriet Miers. That essentially Miers was someone who we didn't know what she stood for. She didn't have a public record.

George W. Bush was saying to people, trust me, I've got good judgment on this and movement conservatives quite appropriately said that's not good enough for us. I think we have, despite the obvious differences between the two candidates, a similar situation here in regard to these absolutely crucial factors.

And as to this point regarding whether the confirmation process is going to illicit the kind of information that we need, there's a real irony here, which is that one of the few substantive things that Elena Kagan has ever said about the Supreme Court and the nomination process is a claim that she made in a book review about 15 years ago in which she said that the nomination process had become a charade because nominees were not required to answer the kinds of questions that they should have to answer in regard to their substantive legal views in that confirmation process.

Now, this morning, the White House is announcing that she's changed her mind about that and that upon further reflection she doesn't think it's appropriate to require nominees to answer those kinds of questions. I would note that when she said that, she was a tenured professor at the University of Chicago Law School, so this isn't something that she wrote in, like, a student newspaper when she was 19 years old or something.

KEYES: And Professor Campos I'm going to have to ask you to cut to the chase because we're running up against the clock. Go ahead.

Prof. CAMPOS: Yeah. Well, I just think we just I think that to the extent that it's possible to eventually support this nomination, it has to be based on her answering real substantive questions in the confirmation process instead of going through this kind of kabuki ritual of dodging those kinds of questions, which is what nominees have so successfully done for the past 20 years.

KEYES: Okay, we are out of time. I am so sorry, Professor Bainbridge. I would love to hear what you think about her chances of weathering the confirmation process. But law professor Paul Campos of the University of Colorado at Boulder joined us from NPR member station KGNU in Boulder. You can find his piece titled "Kagan Doesn't Deserve It" on TheDailyBeast.com. Law Professor Stephen Bainbridge of UCLA joined us from his home office in Los Angeles. Gentlemen, thanks much for being with us.

Prof. CAMPOS: Thank you.

Prof. BAINBRIDGE: Thank you.

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