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The Monitor's View

Elena Kagan as Supreme Court consensus builder?

Elena Kagan is Obama's chance to have a Supreme Court justice who can build bridges between factions on the court. Chief Justice John Roberts said he wanted to do that but so far he is failing.

By the Monitor's Editorial Board / May 10, 2010



One quality that President Obama admires in his Supreme Court nominee, Elena Kagan, is that of consensus-building – or her ability to respectfully listen to all sides and patiently bridge disagreements in order to form the widest coalitions.

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She ably demonstrated those traits as dean of the Harvard Law School, bringing together a place known for its divisiveness and left-leaning tendencies. Mr. Obama hopes Ms. Kagan can be just as effective with the eight other justices on the bench if confirmed by the Senate.

The ability to reach across a political divide is what Obama also promised for himself as president during his 2008 campaign, hoping to win bipartisan support on major legislation. And John Roberts, the high court’s chief justice who was nominated by President Bush in 2005, likewise promised during his Senate hearings to reduce the large number of 5-4 split decisions on the high court.

Mr. Roberts even specified how he would do it, saying a justice must act with humility and modesty in judging. “The broader the agreement among the justices,” he said, “the more likely it is that the decision is on the narrowest possible ground.”

But neither the president nor the chief justice has had much success so far in bridge-building with their ideological opponents. Most of the Supreme Court decisions are still decided by the “swing vote” justice, Anthony Kennedy, while Roberts himself was anything but narrow or consensual in the court’s recent decision granting corporations the same free-speech rights as individuals. As for Obama, he has had to resort to rough political and legislative tactics in Congress to pass his health-care law and other measures.

This raises the question of whether Ms. Kagan, who is Obama’s solicitor general in the Justice Department, will fall into the same take-no-prisoners politics of Washington. Her bridge-building abilities will be even more important considering that she would simply be a liberal replacing a liberal on the court for the departing Justice John Paul Stevens. She’s not expected to change the ideological makeup on the bench.

Much of the questioning of Kagan by senators during her confirmation hearings will likely be ideological, or a probing of her beliefs on legal matters from the rights of suspected terrorists to abortion. She will, of course, need to be careful in answering such questions so as not to taint her needed reputation of impartiality as a judge.

But it would be helpful if at least one senator tried to probe her abilities to find consensus and compromise. As one conservative Harvard colleague, Charles Fried, wrote of her: “She showed an ability to put aside disagreements with a [professorial] candidate’s political or intellectual disposition and to see only the quality of the candidate’s intellectual ability and potential contribution.”

During her hearings last year to become solicitor general (the person who argues for the administration before the Supreme Court), Kagan did win some GOP praise but ended up with 31 Republicans voting against her final confirmation.

Such opposition reflects the main issue in legal circles: Should the past six decades in which courts have made decisions on major issues in society – in large part because elected leaders won’t or can’t – continue into the 21st century?

Now that the courts are a major arena for political activism in a litigious America, it is more difficult than ever to find consensus among the justices. Each new president has tried to sway the court one way or the other with his nominations.

Roberts has hoped to demonstrate that he could build wider coalitions on the high court by taking fewer cases and deciding them on narrow grounds. This is called the minimalist approach to judging, or the kind that leaves it to legislatures to resolve fundamental disputes in society.

Does Kagan believe that? And would she bring those qualities of listening and bridging arguments with the other justices behind closed doors in such a way to end the many 5-4 decisions?

Her coming Senate hearings should help Americans find out.

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