Is Kagan A "Legal Progressive?"


A few months ago, trying to calm liberal anxieties about the Supreme Court nomination of Elena Kagan, Vice President Joe Biden's Chief of Staff Ron Klain said that “Elena is clearly a legal progressive."

Adopting the Glenn Beck definition of "progressive" as "crypto-fascist," Sen. Jeff Sessions grillled Kagan on whether she identified that way. She responded by saying she didn't know what a "legal progressive" was:

"Senator Sessions, I honestly don't know what that label means. I've worked in two Democratic administrations. ... You can tell something about me and my political views from that. ... I love my good friend Ron Klain. But I guess I think people should be allowed to label themselves."

Now I can appreciate Kagan not wanting to be included in Sessions' definition of "legal progressive." In fact, I'm not sure the label is actually one I've ever heard liberals other than Klain, use, and I think he simply meant to signal to liberals that Kagan is "one of them."

But is it really plausible that Kagan has no idea what it means to be progressive on legal matters? In 2008 she spoke on a panel at the national convention of the American Constitution Society, one of the most prominent liberal legal groups in the country. The American Constitution Society describes itself as "one of the nation's leading progressive legal organizations." The convention was themed, "Revitalizing Our Democracy: Progress and Possibilities."

So does this mean Kagan was lying? I wouldn't go that far -- I think it's fair for her not to want to identify with a label made up by Ron Klain and twisted by Jeff Sessions into something no liberal would agree with. Earlier in the hearing, she noted that judges sometimes have to resolve the tension between the framer's intent and the principle outlined in the amendment in question. When asked by Sen. Herb Kohl whether her philosophy was more like the originalist philosophy of Antonin Scalia or the more realist one of David Souter, Kagan split the difference by arguing that “I don’t think this is an 'either or' choice; I think there are some circumstances in which looking to the original intent is determinative, and other cases in which it is not to be.” She added, “In some cases the original intent is unlikely to solve the question ... because it is unknowable, or it might be because we live in a world [that] is very different than the one in which the framers once lived.”

That's a rather Obama-like "pragmatic" answer. Which, incidentally, is one of the terms Klain used to describe Kagan when he labeled her a "legal progressive."

Kagan ultimately told Sessions that "I love my good friend, Ron Klain, but I guess I think that people should be allowed to label themselves." It's ironic that Kagan has avoided the "progressive" label since, thus far, she's done a pretty good job of defending how progressives actually think about the law.

UPDATE: Asked about her political views, Kagan said "My political views are generally progressive.” I'm sure someone is going to be offended by this.


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