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Elena Kagan and John Roberts: Yin and Yang or Two of a Kind?

5 years ago
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They both attended and excelled at Harvard Law School. They both worked for their respective patron/presidents at the Office of the White House Counsel. He clerked for his predecessor, the late chief justice of the United States, before working in the solicitor general's office. She clerked for the late Justice Thurgood Marshall before making her recent bones at the Supreme Court after becoming the nation's first female solicitor general.

When President George H.W. Bush nominated him to the D.C. Circuit Court of Appeals in 1992, Senate Democrats blocked the appointment. When President Bill Clinton nominated her in 1999 to the same court, Senate Republicans blocked her from getting a vote. That seat on the court eventually went to him. They were both nominated to the highest court in the land when they were 50 years old, the youngest prospective members of their time, and if she is confirmed, they will likely serve there together for the next 25 years, at least.

It's Frick and Frack. Yin and Yang. Stuck together like carrots and peas.

There are enough similarities between the pre-Supreme Court careers of Chief Justice John Roberts and Supreme Court nominee Elena Kagan to make their differences going forward even more pronounced. If he is to anchor the court's right for the next generation, President Obama hopes that Kagan will anchor its left for at least that long. If he came to his job with a reputation for courtesy and respect for the institution, she comes to her nomination with a reputation for being a consensus-builder. Whether she can be more effective at this tough task than he has over the past few years remains an open question.

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After the Senate refused to confirm him as a federal appeals court judge, Roberts went into private practice and made a ton of money at one of Washington's most prestigious law firms, where he frequently argued before the court. When the Senate refused to confirm her a decade ago, Kagan went back to her academic roots and became the first female dean of the Harvard Law School, which also pays pretty well and involves a staggering amount of influence and connections. Liberal or conservative, male or female, you don't get to their stage of a legal career without impressing pretty much every boss or colleague you meet along the way. The two are intellectual and professional equals who are likely to disagree often and vocally about what the Constitution means.

There was no mystery to Roberts' judicial philosophy when President George W. Bush nominated him to the Supreme Court in 2005. Roberts had a long and consistent record of conservative decisions on the D.C. Circuit when he was nominated -- but nothing to suggest he was beyond the mainstream of contemporary jurisprudence. Moreover, his writings as a Rehnquist clerk also made clear where he stood on the most contentious issue of our time. Because of this, or in spite of it, the new chief justice-designate sailed through confirmation and received bipartisan support from the Senate. He received more votes than the two newest justices who have succeeded him onto the bench, Samuel Alito and Sonia Sotomayor; 22 Democrats supported his appointment. Only seven Republicans supported Kagan's nomination last year for solicitor general.

This was so, perhaps, because Kagan arrived without the sort of tangible written record Roberts had created over the years. In the absence of declaratory statements from her about controversial topics -- a vacuum abhorred by the relentless appetite of modern media -- Kagan has managed to worry both the right and the left at the same time. Conservatives assume she is liberal but support her positions on a few topics. Liberals hope she is more progressive than her public stances have been on the legal war on terror. There are plenty of ambiguities about her ideology, which no confirmation hearing before the Senate Judiciary Committee is likely to clear up. For the right, at worst, she'll be as liberal as Roberts is conservative. For the left, at worst, she'll be a Reverse (David) Souter, a candidate who promptly tacks against the doctrine and political persuasions of those who nominated him.

When Roberts sat on Capitol Hill for his questioning by the Senate committee, he memorably offered up an "umpire" analogy, suggesting that judges are far more neutral than they really are. You could feel his respect for the court's traditions, and the traditions of the Senate; a natural state, perhaps, since the man essentially grew up at the court when he clerked for William Rehnquist back in the day.

By contrast, Kagan several years ago candidly trashed the current judicial nomination process, calling it what it has become: empty political theater with virtually no redeeming value. Roberts patiently answered the polite and tepid questions asked of him in 2005 and barely broke a sweat. Nominee Kagan will have to face those days of tedium, too.

Roberts and Kagan: two very different legal voices, shaped by common experiences, arriving at the same exalted place at about the same stage in life. I sure hope they can get along with one another, because they're likely to be working together until about the middle of this century.

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