Kagan has since backed away from the opinions expressed in her essay. She now acknowledges that there are good reasons for prospective justices to choose their words carefully. Candid disclosure of a nominee’s view on an issue might be misconstrued as a pledge to vote in a certain way.
But this is little comfort to analysts on both the right and the left who want more information about what kind of justice Kagan will become once safely ensconced in a lifetime appointment.
Some Democrats worry that she may favor an expansive view of presidential authority at the expense of civil liberties in the battle against terrorism.
Meanwhile, Republicans are searching for evidence that she would use her position on the high court to legislate from the bench, deploying her power as a justice to right societal wrongs and champion the cause of the little guy. Because she’s never been a judge, Kagan has no paper trail demonstrating what kind of judge she’d be.
But Kagan is not a true stealth candidate.
She is the first woman to serve in two of the most exalted jobs in law – as dean of Harvard Law School and as US solicitor general, the government’s lawyer at the Supreme Court. She is a highly regarded scholar of the First Amendment and administrative law. She is by most accounts smart, charming, and a beloved teacher.
While it is true that she’s never been a judge or litigated a trial to verdict, she has demonstrated in her six arguments at the high court a deep understanding of constitutional law and an apparent comfort level in her discourse with the justices.