Kagan Likely To Be A Pocketbook Pragmatist on the High Court

Last Updated May 10, 2010 12:21 PM EDT


Elena Kagan, nominated to the Supreme Court by President Obama on Monday morning, is expected by most observers to win confirmation and become the next Supreme Court Justice. Less easy to predict is what influence she'll have once she's there, especially on consumer issues.

She is even more of a cipher than other recent nominees, because she has not served as a judge and has not spoken broadly about her positions on issues. Yet her background offers some clues to where she will stand as issues like financial reform and health care reform are likely to come before her. Her background runs towards liberal connections, suggests blogger Tom Goldstein, a court analyst who has posted an exhaustive (but not exhausting) review of Kagan on his web site. The Alliance for Justice, a consumerist group (though it sounds like a collection of superheroes, doesn't it?) says that she will bring "a willingness to stand up for ordinary Americans" to the high court. The group has asked the Senate to focus on consumer bread-and-butter issues in her confirmation hearings. Here are some thoughts on how Kagan might rule if confirmed:

She'll get her shot at consumer issues. Expect a lot of pocketbook cases to get to the court in the next few years, as the federal courts now face dockets full of bankruptcy, arbitration, foreclosure, debt collection, and credit card cases. They won't all get to the court, of course. But it's likely some of those issues will come in front of Kagan, who will be replacing Justice John Paul Stevens, a reliable pro-consumer vote.

She is, above all, a pragmatist. Kagan has said that the Military's "Don't Ask, Don't Tell" policy on homosexuality is "a moral injustice." Yet she used every arrow in her quill to challenge the Solomon Amendment, which cut college funding for schools that banned military recruiters, while she was Dean of the Harvard Law School. And when being considered for Solicitor General (the post she now holds), she wrote that she was most proud of her "judgment as opposed just to book learning." So don't expect her to be ideological when pocketbook issues like health care reform come before her. Expect her to consider outcomes and watch the bottom line.

She'll be pro-regulation. Former New York governor (and strong proponent of bank regulations) Eliot Spitzer is a good friend of Kagan's. In the Clinton White House, she worked to get tobacco companies regulated by the Food and Drug Administration, even convincing Sen. John McCain to support the legislation. She also believes in strong Presidential powers. So if Congress passes financial regulatory reform, don't expect her to help conservative justices kill the bill.

She's a negotiator. Kagan may not be the automatic pro-consumer vote Stevens has been, but her long Democratic credentials and personal connections suggest she leans that way. More importantly: She is said to have the same coalition-building skills that he had. The key to her time on the court won't be how often she votes consumerist; it's how often she's able to pull a fifth vote over with her.

She'll surprise, sometimes. That's what many nominees do. There's enough about Kagan to upset extremists on both the far left and the far right. Maybe she'll sometimes vote right, and maybe she'll just turn out to be a coalition-building centrist. And if that serves to dial back some of the partisanship and cross-aisle (and inter-branch) bickering we've been seeing so much of lately, how could that be bad?

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