An Uninspiring Pick
In selecting Solicitor General Elena Kagan today to succeed John Paul Stevens on the Supreme Court, Barack Obama passed over several more compelling and confirmable selections, most notably Diane Wood. It would be unfair to lable Kagan as Obama's Harriet Miers, but that's my first impression here.
I'm searching for one solid reason that recommends her over Wood, aside from their age difference, yet I cannot find one. Kagan has never been a judge, and is an advocate of executive power. But being dean of the Harvard Law School does not in and of itself make you a solid candidate for the SCOTUS. Yet she is younger than Wood, and supposedly is more confirmable because she has no judicial paper trail, as if that makes a difference to today's GOP.
If Obama wanted someone with a record of consensus building in a difficult environment, who was highly respected by conservatives, the choice was Wood rather than Kagan, who unlike Wood brings nothing of judicial substance to bench. If you can survive the 7th District with Posner and Easterbrook, and earn their respect, and if you already know and get along with Scalia, yet hold your ground just as toughly, then you are an ideal pick. Yet Obama passed Wood over. There is no argument that the court needs fewer conservative men and more women. But if Obama was seeking someone to appeal to Kennedy as the swing vote, it is far more likely that Kennedy and even the neanderthalic bloc would respect entreaties from Wood far more than from Kagan.
I'm willing to wager that Obama will have a more challenging job in getting Kagan through than he would have with Wood, but if he wants to spend his remaining nickel on someone who can be criticized in several different ways, most notably for not even having judicial experience, then it's one more troubling indicator of Obama's judgement.