Confirm Elena Kagan to the SCOTUS

Elena Kagan should be the next justice on the Supreme Court, and in the absence of any unforeseen disqualifiers, should be confirmed with significant Republican approval.

There are four main reasons why.

1. She’s likely the best nominee conservatives could hope for from the Obama administration

Pres. Obama did win the election, and the president ought to be able to appoint the qualified nominee of their choice. Conservatives who argued for a more lenient path for Bush’s nominees should not in turn disqualify Obama’s nominee via policy nitpicking.

Elena Kagan seems to be by all accounts, a center-left mainstream Democrat. Her conservative colleagues respect her, and she seems amenable to at lease some of the Roberts-Scalia-Thomas-Alito views, particularly as they pertain to executive power and rights for suspected terrorists.

True, her lack of a judicial record leaves some guesswork as to what kind of justice she’d be. However, her professional track-record over several decades shows little evidence of the sort of ultra-left, “activist” philosophies—you know the sort that conservative groups have nightmares about.

2. At worst, she moves the court slightly to the right

Fox News’s excellent legal analyst Megyn Kelly made the very valid point that the outgoing Justice Stevens is the court’s most leftwing justice. So Kagan, at worst, is still going to move the court further to the right. She’s exactly right. Replacing Stevens with Kagan would likely be a net gain for conservatives.

3. The criticisms of her don’t hold much water

The two main criticisms of Kagan are that she hasn’t been a judge before and she is something of an elite. Regarding her lack of judicial experience, no big deal. Justice Rehnquist had no judicial experience before his appointment and that was no hindrance. Furthermore, she has tremendous non-judicial experience in the legal world as a White House council, Dean of Harvard Law School, and Solicitor General.

As to the charge of being an elite, eh, so what? Would I rather her have a law degree and legal experience from somewhere in the South or the Heartland? Yeah. Is it a little ridiculous 8 of 9 justices would be from Harvard and Yale? Yeah. But if Kagan is an elite, so is Alito and so is Roberts. And the charges of elitism weren’t a concern during their conformations and shouldn’t be now.

4.  Conservatives ought to use their energy on other fights

Spending. Cap and Trade. Immigration. The 2010 Midterm Elections.

There are so many other areas on which conservatives need to use their focus and energy. Mounting a colossal opposition to a Supreme Court nominee who is not a radical lefty seems like a waste of time and resources. Now don’t get me wrong, Kagan deserves tough questions and thorough investigation. However, if at the end of the day, she’ll move the court rightward, why stand in knee-jerk opposition? I’d much rather defeat Cap and Trade legislation and have Kagan skate onto the court fairly easily.

Conservatives need to be focus on holding the line on spending, arguing effectively against harmful legislation, and crafting a winning message to take back the House and the Senate in November. Elena Kagan is a qualified, center-left nominee taking the place of a hard-left justice. She’s simply not worth a huge fight.

For conservatives to mobilize their infrastructure of legislative leaders, think tanks, websites, talk radio, interest groups, and the like, in order to support or oppose something, it takes an enormous effort with no guarantee of success (see: healthcare). Cap and Trade legislation and new spending are well worth these efforts. Spending the time on opposing Elena Kagan is akin to having a son who is cutting class, doing drugs, and having unprotected sex, and then choosing to lecture him about his haircut.

As long as nothing unqualifying comes out about Kagan (and if rumors about her sexuality are true, that does not count as unqualifying), and she performs well at the conformation hearing, then conservatives shouldn’t raise hell in opposing her. They don’t have to enthusiastically support her, but they ought to vote yes with full confidence she’s tilting the court more in their preferred direction.