Josh Gottheimer, a 2004 graduate of Harvard Law School, was a special assistant to the president and speechwriter for President Bill Clinton.
On April 9th, the day Justice Stevens announced his retirement, President Obama outlined the qualities and characteristics he would be looking for in his next appointee to the Supreme Court: "I will seek someone … with similar qualities—an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
Unsurprisingly, at the time, many on the left swiftly drew up their list of favorites and of those they were less enthusiastic about. They were quick to categorize those on the White House's short list—and to evaluate who would best represent the "voices of ordinary citizens." Before the facts were even on the table, they had drawn their own conclusions; they had especially done so about the president's soon-to-be nominee, Elena Kagan.
This was ironic given Kagan's accomplishments—she was a law clerk for Justice Thurgood Marshall, a law professor at Chicago and Harvard, and now solicitor general. She also had the pragmatic policy and political skills: domestic policy director in the Clinton White House, associate White House counsel, and the first woman dean of Harvard Law School.
Now, it was true that Kagan had never been a judge, so there wasn't a volume of her decisions for folks to leaf through—and this understandably made some nervous.
But now that we're three months down the road, and that we've had a chance to get to know the president's nominee, I'm hoping that those early naysayers have come two see things: First, as much as we'd like to, you just can't put people into neat ideological boxes—some of their preconceived notions were off-base. Second, Elena Kagan is a progressive who has spent her career in the law and in politics as a champion for "the voices of ordinary citizens."
As any good lawyer would do, particularly with the confirmation hearings on the horizon, it's worth reviewing the evidence at hand.
First, Kagan has already distinguished herself as an aggressive advocate for campaign finance reform. The first case Kagan argued as solicitor general was Citizens United v. Federal Elections Committee, arguably the most important case in recent judicial history and ground zero for political speech. It was one of the many cases Obama referenced when he said back in April, "In a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." In one fell swoop, the Court upended decades of campaign finance laws that kept corporations and their unlimited financial resources out of the political process. Kagan argued that if Roberts and the other conservative justices had their way, which they ultimately did, the voice of the ordinary American would simply be overpowered by the deep pockets of corporate America. This issue is not going away anytime soon. In one way or another, it will be before the Court in the coming years and the next justice will play a critical role in the outcome.
Second, dating back to her time in the Clinton White House, Kagan has understood how to utilize the political process to help ordinary Americans. She recognizes the power of the law and government to help—or to harm—"the daily lives of the American people." Wearing her West Wing hat as associate White House counsel and then as deputy director of the Domestic Policy Council, Kagan was a persuasive advisor for the President's agenda, whether it was campaign finance, education, tobacco, or health care reform. We worked together in the White House, so I can tell you first-hand, Kagan understands the intersection between the legal, political, and real worlds.