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With a confirmation battle almost as boring as the election battle here in Australia, former Solicitor General Elena Kagan has been appointed to the Supreme Court. The vote split, as expected, upon partisan lines with only 5Republicans voting for her and no Democrats voting against her.

I’m only really publishing this post because I’ve been following the Kagan story from the beginning. I think Kagan is a competent pick – probably one of the most capable and distinguished lawyers in America, even if she wasn’t an appellate judge. She has practiced at the bar and was in fact Solicitor-General. It isn’t overly common for Australian High Court justices to be appointed straight from the Bar, but it happens and those judges are usually no worse for wear.

I think Kagan will be a good justice. Her aversion to revealing any information about her own judicial views whatsoever is interesting  has lead some to think she might be a secret liberal. On the other hand, what kind of secret liberal can hide their beliefs so that long? Surely someone who can be so pragmatic for so very long is likely to be a pragmatist, rather than a ideological dogmatic.

I’m not a raucous fan of pragmatists, since it makes for patchy law that doesn’t have a coherent flow of logic down through the ages. But they are far preferable to the judicial activists that both Democrats and Republicans have been placing on the benches in recent years.

(And yes, I shall have a post up on the Prop 8 decision soon)



  1. Actually 1 Democrat — Ben Nelson from Nebraska voted against her

  2. Oh lol, I must have thought he was a Republican. Moderate Democrats are like that sometimes.

    And how come I had to approve your post? Normally they just appear without me needing to lift a finger.

  3. Her aversion to revealing her views is just following precedence, considering how partisan the US senate is/has become, anything substantive she says will be distorted by either parties to prove her unfitness (read simple as “we doesn’t agree with us and she will rule against our interests”).

    • Yeah, that explains her aversion to revealing her views during the confirmation process. But this is a woman who specialises in constitutional law and yet has avoided all the thorniest and most controversial issues in constitutional law. How is that even possible? I assumed all of constitutional law is controversial in the US!

      She has clearly dedicated her entire career (or at least, ever since Bork) to not revealing her views so she can get onto the SCOTUS. That takes severe dedication and a severe dose of pragmatism.

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