Estrich: Obama has made a supreme choice with Kagan

By Susan Estrich

Elena Kagan is not a surprising choice for the United States Supreme Court, but she is a very smart and deserving one.

She is smart and honorable, a woman of character and integrity. And perhaps most important of all, in these times, she will be very hard to oppose.

I have to laugh when I hear conservatives complain that she is not qualified to serve on the court. The former dean of Harvard Law School? The current solicitor general of the United States?

Sorry, my friends, but that dog don't hunt. Then there's the argument that she's too liberal, the “judicial activist” routine. A judicial activist, I've come to conclude, is someone who disagrees with you.

Liberals think defenders of the Second Amendment are judicial activists. Conservatives think the same of defenders of the First Amendment.

The truth is, you can't interpret the Constitution without being an activist. You'd have nothing to say. Pretending that the words of the First Amendment tell you whether images of dogs being crushed can be sold online, or that the words of the Second Amendment tell you how far a state can go in limiting the possession of certain weapons, is just plain absurd.

It's what nominees say when they're going through the modern charade called confirmation hearings. But no serious legal scholar, liberal or conservative, thinks that all a justice has to do is call balls and strikes. That's just what the smart ones say to get confirmed.

As for where Kagan actually stands on the ideological spectrum, my guess is that she's not as far left as liberals would like and not as far right as conservatives would hope - which is to say she's highly confirmable.

In the rarefied world of legal academia, she'd almost certainly be counted as a moderate, not even close to a “lefty.” Her academic writings have been careful, not controversial. Her tenure as dean of Harvard Law School was marked by broadly shared good will, not radical change, and fundraising success.

In the solicitor general's office, she has been a very effective advocate, a great boss and a popular presence. The court treats her with great respect. She gets along with liberals and conservatives alike.

Kagan's experience in the Clinton White House and at Harvard Law School helped her develop a set of skills that is almost as important in a Supreme Court justice as legal brilliance.

She is a consensus-builder. She is a team player. She is ideally suited to succeed in an institution where five votes matter, not one.

When Justice Stevens, whom she will replace, first joined the court, he was known for his dissents. They were brilliant dissents, but they were, very often, lonely ones.

I remember, clerking for him in the early years, telling him how this or that justice worked the halls or the phones to put together their majorities.

It was not his instinct to do that kind of politics. He wanted reason, argument and logic to carry the day.

I think Kagan will be a very popular justice. I think she will be one of those who walks the halls, works the phones, does lunch and dinner. I think she will be a leader of the court for years to come.

I could not be more pleased for her, or more appreciative to the president.

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