My View • New justice is likely to follow model set by Sandra Day O'Connor
The Senate confirmed Elena Kagan's nomination to the Supreme Court with a majority vote of 63, fewer than the 68 votes Justice Sotomayor received last year, but more than that of Justice Alito (58) or of Justice Thomas (52). Even so, the Senate debates demonstrated a strong partisan divide on two points - her qualifications and whether she will carry a personal political agenda with her to the court.
I am struck by the question of whether Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, could be confirmed by the Senate today. She was a Westerner who attended Stanford University Law School. She was majority leader in the Arizona Senate and plainly involved in partisan political issues and activities. She became a judge on the Arizona Court of Appeals, but did not serve in the federal judiciary until President Reagan nominated her to the U.S. Supreme Court.
What kind of judicial paper trail did she leave for senators to examine in order to discern where she stood on national political issues? Was anyone concerned that she would take her partisan political ideology to the court? These issues did not hamper her ability to serve on the court.
I'm thinking that Justice Elena Kagan may be more in the mold of Justice Sandra Day O'Connor than we realize now. Her consensus-building skills give her a good start among colleagues. I have no doubt that she will work quietly and steadily in building trust and respect among her colleagues, the legal community and the public.
On the qualifications issue, Kagan's critics in the Senate seemed unable to assess her value to the Supreme Court without a paper trail of opinions from previous service on an appellate federal court.
Apparently, the detractors saw little or no value in Kagan's service as the first woman solicitor general, a responsibility that requires preparing briefs and presenting arguments before the Supreme Court.
Nor was it significant experience to her opponents that Kagan was dean of Harvard Law School or a professor of law at University of Chicago and Harvard. Kagan is considered to be one of the country's best constitutional and administrative law scholars, and there was a time when it was considered desirable to have a justice with a strong background in academia on supreme courts. This provided intellectual balance to the makeup of a court that might otherwise be outcome oriented, rather than engaged in the reasoning process behind its decisions.
Also, during the Senate debates, there was the problem of having been on the Clinton White House staff as associate counsel and later as policy advisor to the president. That is compounded, according to her detractors, by her position as solicitor general, because she has written memos to President Obama giving advice on political issues. Her job also required her to work with Congress on legislation where her coalition-building skills helped resolve issues and get legislation passed, often with bipartisan support.
Supporters such as Senate Judiciary Chair Patrick Leahy say her work with Congress gives her a good understanding of the legislative process and will be an asset to the court when considering cases that involve statutory law.
Opponents demonstrate a lack of knowledge about how appellate courts work when they argue that Kagan may take positions on cases at the Supreme Court consistent with her own political ideology, rather than approaching cases based on precedent and an objective interpretation of the Constitution and statutory law.
First, good lawyers and judges, as a result of the rigors of law school, are imprinted with a deep respect for law and our judicial system. Second, the internal constraints imposed by the rules of the court do not allow partisan political opinions, and for any justice to attempt to do so would be self-defeating. Every judge wants to influence colleagues in order to receive a majority for his or her opinions. Respect among one's colleagues is a very high priority, and Justice Kagan will work hard to achieve that.
Justice Kagan, like Justice O'Connor, will serve us well for many years to come.
Justice Betty Roberts was the first woman on Oregon's Supreme Court. She served from 1982 to 1986. She is the author of 'With Grit and by Grace: Breaking Trails in Politics and Law,' published by OSU Press.