It seems as if the nation has become captivated by Elena Kagan's charm and wit as she moves through the nomination process in a style very different from what we saw last year with Justice Sonia Sotomayor. Even the Senators conducting the hearings seem enamored with her.
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In many ways, she is pulling an Obama in defusing critics of her nomination for the U.S. Supreme Court, using her personality to win over those who are wary of her lack of experience on the bench.
The fact that Kagan never served as a judge has caused many to oppose her nomination. Yet, Sen. Lindsey Graham (R-S.C.), a member of the Senate Judiciary Committee, has already told Kagan that she "acquitted" herself well during the days of questioning on Capitol Hill. Even a Republican senator from a red state like South Carolina understands the rules: Elections matter, and the person who wins nominates his choice for the high court regardless of the apparent flaws of said candidate. Most African Americans abhor that lesson from the 1988 election, a race that not only determined the presidency, but also Thurgood Marshall's replacement in 1991: Clarence Thomas.
However, the most important critique of Obama in 2008 and Kagan today is not the similarities they share—the undoubted substance of their academic achievements versus the lack of work experience for the jobs they seek. Just as Obama's voting record demonstrated a clear pattern of toeing the Democratic Party line as a U.S. Senator, Kagan's career denotes a long history as a political operative, thus presenting the risk of further politicizing a court that has already morphed into a de facto political processor of appellate cases.
Like candidate Obama, who promised to be a pragmatist and a centrist when elected president, nominee Kagan has danced through rounds of questioning by insisting she will be a case-by-case jurist once confirmed. President Obama's record has not matched his campaign promises of centrism and pragmatism, intentions that were cast aside once Democrats gained enough of a majority on Capitol Hill to give him the latitude to revert to his partisan ways.
Effective job creation and energy independence initiatives lost priority as the Obama-led Democrats pursued health care reform for more than a year. Border security has also taken a partisan tone, becoming less about keeping Americans safe from the threats of drug wars and terror plots. Instead, the Obama-led Democrats are forging another partisan-driven debate over illegal immigration as another issue that will capture the White House's attention ahead of the bipartisan concerns about continued high unemployment and recessionary worries. Just the same, the expectations that a rookie jurist will fulfill the role of a "liberal" justice will give Kagan the same latitude once on the Supreme Court. Despite her record of politicizing key legal matters, such as partial-birth abortion during her time in the Clinton White House, Kagan has employed the charm-and-disarm strategy during her confirmation hearings to convince the senators on the Judiciary Committee—and America—that she will be impartial on the bench.
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