Legal Commentary

My Forbes Op Ed on the Kagan Nomination

By Ilya Somin

Forbes just published an op ed I wrote on the Kagan nomination, in which I develop some of the points I made in this post:

From a libertarian or conservative standpoint, Elena Kagan is far from an ideal Supreme Court nominee. But she may well be the best we can hope for at this time. Her openness to non-liberal views of the law and occasional deviations from liberal orthodoxy make her a more attractive candidate than the likely alternatives...

Kagan is no conservative or libertarian. But she might be less liberal than administration supporters hope. With Kagan, that possibility at least exists. Not so with most of the other plausible Obama nominees... None of them has a comparably extensive record of openness to non-liberal ideas or deviation from liberal orthodoxies.

Barring some unforeseen revelation, Kagan is likely to be better from a non-liberal point of view than anyone else President Obama is likely to pick. Therefore there is little to be gained from aggressively opposing her nomination. Indeed Obama opponents might actually hurt their cause by attacking her too much. If they dig in and signal they will wage all-out war against any potential liberal nominee, it could increase the administration?s incentive to appoint hard-line left-wingers. If Democrats believe they can?t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.

Full post as published by The Volokh Conspiracy on May 11, 2010 (boomark / email).