Former acting solicitor general Walter Dellinger said today that Elena Kagan's work for civil rights and Democratic icons should alleviate any concerns about her among liberals.
Dellinger, speaking at a panel sponsored by the liberal American Constitution Society, was asked by moderator Amanda Frost about the criticism that Kagan’s views are largely unknown. Dellinger, chair of the appellate practice at O’Melveny & Myers, said that Kagan’s no stealth candidate, as the largely unknown David Souter was in 1990.
Kagan has some big names among her former bosses, Dellinger noted. She clerked for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit and for Justice Thurgood Marshall. From 1995 to 1999, she worked in President Bill Clinton’s White House.
“That certainly tells you a lot about what her instincts are about social and political issues,” Dellinger said, after rattling off Kagan’s résumé.
Souter, by contrast, had spent his entire legal career in New Hampshire prior to his Supreme Court nomination. He was confirmed to the 1st Circuit shortly before his elevation.
Wilmer Cutler Pickering Hale and Dorr counsel Rachel Brand, another panelist, warned against reading too much into Kagan’s employers. “I actually don’t agree that whom one clerked for has any bearing on what one’s views are,” said Brand, a former clerk to Justice Anthony Kennedy who helped shepherd Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. to confirmation.
Brand predicted that, when Kagan goes before the Senate Judiciary Committee for her hearing in three weeks, she will disavow President Barack Obama’s view about the role of empathy in judging. Justice Sonia Sotomayor disavowed Obama’s view during her hearing last year.
“Politically speaking, it will be hard for her not to reject it because, if she doesn’t, then she’ll look more liberal than Sotomayor,” Brand said.