With today's announcement that President Obama has chosen Solicitor General Elena Kagan to fill the Supreme Court seat of retiring Justice John Paul Stevens, the summer confirmation battle has begun for a nominee whose legal philosophy remains largely unknown.
Kagan, 50, is a cipher on most contentious legal questions despite having gone through the Senate confirmation process last year. As solicitor general, the federal government's main legal advocate, she has had little leeway to take personal stances, and because she has never served as a lawmaker or judge, she has no history of votes or decisions to scrutinize.
Obama's selection of Kagan has generated less immediate criticism from Republicans than his nomination of Justice Sonia Sotomayor, who had penned her share of controversial decisions as a judge on the 2nd U.S. Circuit Court of Appeals. Though Kagan's lack of judicial experience has helped her so far, it could ultimately become the focal point of criticism from the right.
"Kagan's lack of judicial experience and short time as solicitor general, arguing just six cases before the court, is troubling," said Sen. Jeff Sessions (R-Ala.), the ranking member of the Senate Judiciary Committee, in a statement today. "The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to the impartial application of the law and the Constitution. With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics."
When it comes to environmental law, Kagan's positions are largely a mystery, said Daniel Farber, an environmental law professor at the University of California, Berkeley. Her writings suggest that she favors deference to presidential authority, he said -- a stance that would have different effects depending on the administration in power but could result in more expansive environmental regulation.
"We know just about nothing about her views on environmental issues," Farber said. "She's got very little paper trail."
But there are indications that Kagan is sensitive to environmental issues, mostly from her time as dean of Harvard Law School.
Kagan oversaw the creation of the school's Environmental Law Program and an environmental clinic, recruiting high-profile faculty to lead them, said Lois Schiffer, a former head of the Justice Department's Environment and Natural Resources Division. A group of alumni had spent years pushing the school to expand its environmental law offerings, but they made no headway until Kagan arrived, Schiffer said.
Schiffer, a Harvard Law School alumna who guest-taught an environmental policy course during Kagan's tenure at Harvard and occasionally worked with her in the Clinton administration, said she was impressed by Kagan's "commitment to the field of environmental law."
"I would certainly say that she was the one who really understood immediately that there was importance in having an environmental law program at the law school," Schiffer said. If that experience is any indication, Schiffer added, "she'll be very thoughtful about environmental law issues, and I'm hoping that she'll come to them with sympathy for protecting the environment."
Second time around
During her confirmation hearing for solicitor general last year, Kagan gave away little when asked questions that could have provided a glimpse of her positions on environmental issues. This time around, she will face far greater pressure to discuss her legal philosophy.
One question last year came from Sen. Dianne Feinstein (D-Calif.), who asked Kagan to address a George W. Bush-era solicitor general's decision to oppose Supreme Court review of the landmark climate change lawsuit Massachusetts v. EPA. The majority opinion in that case, written by Stevens and decided by a 5-4 margin, required the agency to regulate carbon dioxide as a pollutant.
Kagan demurred when asked whether she agreed with then-Solicitor General Paul Clement's position that states had no standing to sue the federal government for their failure to regulate carbon dioxide. In a filing on behalf of U.S. EPA, which had refrained from regulating greenhouse gases under the Clean Air Act, Clement had urged the justices not to accept the case for review.
"In that case, the solicitor general's office was representing the position of the agencies involved. And if it was right or if it was wrong was more a matter of whether the agency had decided the right thing," Kagan said. "The usual thing for the solicitor general to do is to vigorously defend that policy or practice in court. Without knowing all the ins and outs of the communications between the solicitor general and the EPA in that case, I suspect that that is the decision that the solicitor general made."
Sen. Arlen Specter (D-Pa.), then a Republican, asked Kagan whether she agreed with the Obama administration's decision to withdraw an appeal of a court ruling that vacated EPA's rules on mercury and other types of emissions. Kagan responded by saying that "when executive policy itself changes, the solicitor general's litigating decisions also may change."
Specter ultimately voted against Kagan's confirmation, and he said today that her evasive answers prompted his decision. She was confirmed by a 61-31 margin, with the support of seven Republicans.
"I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice," Specter said in a statement today. "I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman's right to choose, voting rights and congressional power."
The court after Stevens
Though it remains unclear how Kagan would approach environmental cases differently than her predecessor, her confirmation will regardless mark a shift after the retirement of Stevens, who has served on the court since the advent of the modern environmental movement.
When Stevens joined the court in 1975, the Clean Air Act, Clean Water Act and Endangered Species Act were in their infancy. Climate change was not yet on the radar -- the first congressional hearings on the issue, called by then-Sen. Al Gore of Tennessee (D), did not take place until 1988.
Farber said Stevens' approach is typified by his 1984 majority opinion in Chevron v. Natural Resources Defense Council, the court's most widely cited opinion. The case, which involved EPA's decision on stationary sources of air pollution, established the two-step test for deference to federal agencies.
That approach has not always yielded outcomes favored by environmentalists -- in the Chevron case, the court sided with the oil company, rejecting a challenge to the agency's decision to scale back regulations. But in the long run, Farber said, it has led Stevens to side with environmental interests.
"This philosophy of judicial restraint, which is the essence of the Chevron doctrine, has often led him to the environmental side of cases, simply because major environmental statutes tend to favor the environment more often than not," Farber wrote in a recent post on his blog, "Legal Planet." "The moral is simple. To protect the environment, we don't need environmental crusaders on the Court. We just need judges who understand that the paramount role in environmental law is played by Congress (with an assist from administrative agencies), not by the courts."
Kagan's work as solicitor general and as policy counsel during the Clinton administration could lead her to give more leeway to the executive branch than Stevens, who has typically been more deferential to Congress, Farber said. But that is just a guess, he said.
"There's no reason to think that she's going to be terribly different from Stevens," Farber said. "Not based on anything we know now, anyway."
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