Elena Kagan is expected to cast votes usually reflective of the progressive choices of John Paul Stevens after she takes his seat on the U.S. Supreme Court. Of greater importance may be her amiable nature and her respect for those who disagree with her on legal issues. Although her confirmation hearings revealed little—the norm in Senate testimony by judicial nominees—she is likely to take positions that have received support in Hawaii and could persuade colleagues to join her.
Justice-to-be Kagan soon could be faced with evaluating the constitutionality of the federal health care law, much of it patterned after Hawaii’s employer-based statute but including a mandate that all Americans purchase medical insurance or face fines. She supports abortion rights and allowing cameras in federal courtrooms, just as they are allowed in Hawaii state courts.
Kagan is far from being a knee-jerk liberal, as indicated in records of the presidential library of Bill Clinton, for whom she was a domestic policy adviser from 1997 to 1999. For example, she opined that "current research doesn’t support medical uses of marijuana." That may not reflect her opinion today. Recent research confirms that marijuana is effective in reducing muscle spasms associated with multiple sclerosis and pain caused by certain neurological injuries or illnesses.
The Supreme Court has ruled that the federal government may prosecute medical users of marijuana, but the Obama administration has chosen not to prosecute that law in states such as Hawaii where medical marijuana is legal under state law. The issue may arise again under another administration.
The Clinton library records also indicate Kagan opposed "a fairly terrible idea" of creating a federal ban on physician-assisted suicide, allowed in Oregon and Washington and receiving considerable support in Hawaii. However, her empathy does not run off the deep end; she backed the filing of a legal brief arguing that illegal immigrants are not entitled to Medicaid coverage for non-emergency prenatal care.
In Senate testimony this week, Kagan said she is personally opposed to the current ban on openly gays and lesbians in military service. She said the military rule prompted her as dean of the Harvard Law School to bar recruiters from the school’s career services office because it violated the school’s policy against discrimination.
Kagan displayed congeniality and humor during her Senate confirmation hearing similar to an exchange with Justice Antonin Scalia, the high court’s leading conservative, four years ago when he was honored as a Harvard Law alumnus marking his 20th anniversary on the Supreme Court. After heaping him with praise, Kagan chided Scalia for being a proponent of a "dead" Constitution, to which Scalia smiled and responded, "I can package it better than that. I call it the enduring Constitution."
If all goes as expected, Kagan soon will fit comfortably behind the long bench of the Supreme Court and should be an effective communicator in gathering support for her keen reading of the nation’s legal primer.