President Barack Obama announced that Elena Kagan is his next U.S. Supreme Court nominee. This is really only the beginning for Elena Kagan, who I have referred to as the “fear of the unknown” candidate on Obama’s short list. There were really only two hopes I had while waiting for Obama to name his nomine. The first is that I would prefer ANYONE as the nominee over Diane Wood. Obama could have nominated a homeless guy from D.C. and I think he would have been a better fit than the extreme liberal (/socialist) Wood. My other hope was that Merrick Garland, a judge for the D.C. Court of Appeals, would be nominated because he was considered to be the most moderate possibility and the most likely to get through the confirmation process without major issues. Merrick Garland is still considered a liberal as opposed to a moderate, but a shift towards the middle, similar to what Justice Anthony Kennedy did, was a strong possibility and would have effectively shifted the ideological power more towards conservatism. A minuscule shift is likely considered because hardly anybody expects Kagan to be as liberal as Judge John Paul Stevens, whom Kagan is replacing, was on the Court.

I cannot say that I am terribly disappointed in Obama’s decision to nominate Elena Kagan. There was no way I was ever going to be completely satisfied with an Obama choice, so I rely my feelings of the nomination on the fact that Obama was clearly going to take advantage of the opportunity of naming his second justice in just two years of service and that he was definitely going to put a liberal on the Court. My hope, however, was that he would pick the most moderate liberal from his short list. So with that said, my “approval” for this choice comes with a few major flaws. Other top choices including Wood and Janet Napolitano among others were considered to be more liberal than Kagan and Merrick as proven by their records. Elena Kagan does not have a written record to refer to because she has no judging experience. Leave it to a President with hardly any political experience to name a long term Supreme Court candidate with no judging experience (Not to mention that nominating what will be the youngest Justice to the Supreme Court ensures his decision becomes a part of his legacy only adds to his presidential narcissism). This is not to say, however, that she has no law experience. She was the dean of Harvard School of Law and is currently solicitor general where she argues cases on behalf of the United States. But she has neither issued nor written an opinion. This is going to be the primary concern for both Republicans and Democrats on the Senate Judiciary Committee as that “fear of the unknown” sets in. I would like to think that the process could be a simple one where both sides come to relative agreement on a candidate, but there is always the possibility that Kagan will answer one of the crucial questions with controversy.

One question that will undoubtedly create a stir is the miltary’s “Don’t Ask, Don’t Tell” policy. As the Harvard Law dean, she tried to keep military recruiters off the campus in opposition to this policy. Her school policy was overturned unanimously by the Supreme Court in a friend-of-the-court brief. Many conservative bloggers have also raised the question about her sexuality. I am by no means implying that any of these accusations are true. These individuals have no proof that she will be the first openly gay Supreme Court justice other than the fact that she is a 50 years old and single. I personally think it is an erroneous accusation until she becomes openly gay, but Republican Senators are going to try to push the envelope during the confirmation hearings. It would be political suicide for them to explicitly question her sexuality, but since her “Don’t Ask, Don’t Tell” view is the only known clear cut controversial topic about her, Republicans would be smart to bombard her with questions about that issue as well as same-sex marriage issues. If Republicans on the Senate Judiciary Committee are able to convince the public that she is a lesbian based solely on her gay rights views, it will give social conservatives in Congress enough reason to vote against her in support of their constituents.

Now it probably seems that it is my top wish that Elena Kagan does not get voted into the Court but that is not 100% true, although it’s not 100% false either. Part of me hopes the process goes swiftly without many problems, but a big part of me also hopes that because the public knows so little about Kagan in regards to her potential as a judge, a failure to get voted in would be seen as a catastrophic failure for Obama and Congressional Democrats with the midterm elections coming up. In other words, I’d like to see a quick process because it’s something the American people probably need in order to see a bipartisan effort for once, but I’d also like to see Republican Revolution Version 2.0 and another Obama failure would help catapult that as Election Day nears. Had Merrick Garland or Diane Wood been nominated, I likely would have done a series of posts similar to what I did for the Arizona immigration bill, but there isn’t enough to discuss about Kagan in terms of her record. The confirmation hearings are going to be very interesting and engaging as Elena Kagan looks to join Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer as the liberals of the U.S. Supreme Court. We’ll learn a great deal about Elena Kagan over the coming weeks and months, but a confirmation vote is not expected until August.