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Geoffrey R. Stone

Geoffrey R. Stone

Posted: May 11, 2010 10:53 AM

Conservatives Can Support Kagan

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I was dean of the University of Chicago Law School in 1991 when Elena Kagan was hired as a young assistant professor. She was smart, tough-minded and intellectually independent. She quickly established herself as a valued colleague and brilliant teacher. Her students raved about her intellect, her analytical rigor and her wit.

In her formative years as a scholar, Kagan wrote a series of illuminating articles about the freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, Kagan's articles addressed complex and weighty legal questions without even a hint of predisposition.

In one early essay, for example, Kagan addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyer-like manner, she came out in full support of a highly controversial 5-4 decision authored by none other than Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.

In these writings, one sees quite clearly the nature and quality of Kagan's mind. Her work is consistently smart, intellectually honest and devoid of any agenda. She is more interested in figuring out a complex legal question than in advancing any cause. Those who assert that Elena Kagan holds views that are out of the "mainstream" of legal thought have no idea what they are talking about. She is, first and foremost, a careful legal thinker, and that is all to the good.

Indeed, Kagan clearly has the intellect, the temperament and the breadth of experience (as teacher, scholar, government lawyer and dean of the Harvard Law School) to fulfill the responsibilities of a justice of the Supreme Court at the very highest level. Moreover, as a moderate progressive, like Ruth Bader Ginsburg, David Souter and Sonia Sotomayor, she will help counter the often strident conservative voices of John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito.

Some conservatives have objected that Kagan has not served as a lower-court judge. This is true, but off-the-point. Historically, many of our most distinguished Supreme Court justices did not serve first on a lower federal court. This includes, among many others, Louis Brandeis, Hugo Black, Felix Frankfurter, Lewis Powell, and William Rehnquist.

Although we have fallen into the pattern of appointing Supreme Court justices from the lower federal bench (ten of the last thirteen fall into this pattern), there is no good reason to adhere mindlessly to this practice. Such experience is a useful, but hardly a necessary qualification.

I am therefore delighted to support Kagan's confirmation. I hope conservatives will do so as well. It is time for us to bring a sense of civility, integrity and mutual respect back to the confirmation process. Five years ago, in an effort to move us in that direction, I wrote post on huffington endorsing the confirmation of John Roberts as Chief Justice of the Supreme Court ("John Roberts: Bush's Blink,"July 27, 2005).

I made clear that, because Roberts had "a long record as a dyed-in-the wool conservative," he would not have been "my choice for the Court." Indeed, I quipped that he was not "anywhere in my top 100." Nonetheless, because I was persuaded that he was a "brilliant, decent individual with superb legal skills and without a rigid ideological agenda," I urged liberals to "sheath their swords" and to support his confirmation.

In considering Kagan's confirmation, conservatives too should "sheath their swords." Sometimes, we should put raw partisanship aside and recognize that a "brilliant, decent individual with superb legal skills and without a rigid ideological agenda" -- a nominee, in other words, like John Roberts or Elena Kagan -- is someone we can all support, even if he or she would not be our own first choice.

Let's hope that, as we move into the confirmation process, conservatives can bring themselves to demonstrate a measure of civility, good sense and responsible governance.

This piece was published in the Chicago Tribune on May 11, 2010.