Somin in Forbes: Don't Dismiss Kagan
In an op-ed appearing in Forbes, Professor Ilya Somin says that while Supreme Court nominee Elena Kagan may not be an ideal candidate from a conservative or libertarian point of view, her "openness to non-liberal views of the law and occasional deviations from liberal orthodoxy make her a more attractive candidate than the likely alternatives."
Somin points to Kagan's record as dean of Harvard Law School to illustrate her respect for alternative viewpoints on the law. Acknowledging the inevitability of the Obama administration selecting a liberal candidate for the most recent Supreme Court vacancy, Somin expresses the belief that it is better to have a liberal justice who is inclined to take alternative perspectives seriously than one who simply dismisses them.
"Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration's judicial philosophy," says Somin, providing "an opportunity to advance public debate over important legal questions."
Don't Dismiss Elena Kagan, Forbes, May 11, 2010. By Ilya Somin.
"Elena Kagan clearly has the necessary professional qualifications for the job. She was a successful dean of Harvard Law School and a respected legal scholar. She also has a record of service in important government positions, including her recent post as solicitor general, the official responsible for arguing the federal government's position before the Supreme Court.
"Still it is perfectly legitimate to oppose a professionally qualified judicial nominee because of flaws in her judicial philosophy. But such opposition must be based on a realistic view of the available options.
"Kagan is a judicial liberal. But her record as dean of Harvard Law School shows that she has respect for alternative perspectives on the law. While at Harvard she hired several prominent conservative legal scholars, such as Jack Goldsmith (in international law and John Manning (in constitutional law and statutory interpretation). Both had taken controversial positions on major legal issues that attracted opposition to their appointments from some left-wing students and faculty. She also created a welcoming atmosphere for conservative and libertarian student groups, such as the Federalist Society.
"Given the very liberal nature of the Obama administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee. In such a situation it is better to have a liberal justice who takes alternative perspectives seriously than one who is generally dismissive."