Ask the Expert: Ian Millhiser on the Supreme Court Nomination of Elena Kagan

What would Elena Kagan bring to the Supreme Court?

Well, I think she's going to bring a very different perspective than the conservative block that currently dominates the Court. You know, John Roberts, who was President Bush's first appointee to the Court, has said that banks and drug companies should have sweeping immunity from state law. He even said that when a wealthy coal baron went out and literally bought a judge, there was no problem with that judge turning around and ruling on that person's case. And Elena Kagan just comes form a different place. When she was in the Clinton administration, she spearheaded legislation that was supposed to preserve some very common-sense regulations to make sure that tobacco companies don't market their products to children. Those regulations were struck down by an ideological 5-4 Supreme Court. So Elena Kagan's actually been on the receiving end of a Court that is a little too obsessed with corporate immunity. And I think that this means she's going to chart a very different course than the conservatives on that Court.

Does she need prior judicial experience before joining the Court?

I worked for a judge once, and I remember every day I would walk down a long marble hall that no one ever went down, and I get to this big wooden door that literally six people in the world had the key to, and I'd go to my desk, and I'd start reading. And when I was done reading, I'd write memos to the judge, and the judge would read my memos, and he'd read the briefs, and he'd write opinions. But you can see how it would be very easy in this environment for judges to get out of touch with what's going on in the real world. Elena Kagan has a wealth of experience. She's been a manager at Harvard Law School, which means that she understands what it's like to run a major organization and deal with the legal issues that major organizations have to deal with. She's been Solicitor General of the United States, where in addition to her duties litigating in front of the Supreme Court she supervises approximately 1,500 decisions as to which cases the United States should appeal. And on top of that, she understands the policymaking process from her experience in the Clinton administration. And I think that's going to lead her to be much more respectful of the laws that Congress has passed in order to protect ordinary Americans.

Why has "Don't Ask Don't Tell" become a point of contention in her nomination?

Well, let's get a few facts straight first. A few conservatives have claimed that when Elena Kagan was dean of the Harvard Law School she kicked off military recruiters because of her opposition to "Don't Ask Don't Tell." This is false. Military recruiters were allowed on Harvard Law School's campus at every minute that Elena Kagan was dean of the Harvard Law School. What she did do is she strongly spoke out against the discriminatory policy. And that puts her in agreement with Admiral Mullen, the chairman of the Joint Chiefs of Staff; General Colin Powell; with Secretary of Defense Gates; and with 70 percent of the American people, according to the most recent polls. So I'm not worried about her views on "Don't Ask Don't Tell." One thing that's interesting, though, is since she became Solicitor General, as Solicitor General it is her legal duty to defend virtually every law that is challenged in federal court. She has actually authorized many appeals defending the same anti-gay policy that she so strongly opposes. And this shows that she is capable when she becomes a judge of separating her personal views from what the law requires, and I have every faith that she will faithfully apply the law when she gets on the Supreme Court.