Accepting the odds on a high-stakes gamble

ACCEPTING THE ODDS ON A HIGH-STAKES GAMBLE…. Emily Bazelon had an item this morning that summarized a key aspect of the political discussion surrounding Elena Kagan’s Supreme Court nomination.

What will Kagan be like as a Supreme Court justice? Much more than Sonia Sotomayor, Obama’s choice for the last court vacancy, or the string of nominees going back to David Souter, we can’t know for sure. Trust us, the White House is saying. The right won’t. But most of the left will come around, especially if Kagan proves broadly popular, as the administration is hoping. She already has many fans among the liberals at Harvard and elsewhere — they’re sure she’s on the team, even if they can’t point to rousing rhetoric from her to that effect.

Exactly. Fairly reliable people know her and have sent less-than-subtle signals to the left: you have nothing to worry about. Asked why they’re sure, these folks invariably rely on the fact that they know Kagan, and are confident, as Bazelon put it, “she’s on the team.”

But that doesn’t calm liberal nerves, and the anxiety on the left about Kagan is hardly baseless. She seems likely to be a reliable, progressive vote, but many on the left would like plain, overwhelming evidence to remove any uncertainties. That evidence remains elusive.

Writing in the New Yorker, Jeffrey Toobin explains, for example, that’s he’s been close friends with Kagan for nearly three decades, and while he obviously thinks very highly of her, Toobin conceded he doesn’t really know what she thinks about key issues. “Clearly, she’s a Democrat,” he wrote. “She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery.”

Which, of course, only fuels additional anxiety.

As far as I’m concerned, the chances are quite good that Kagan will join the court’s liberal bloc. Consider a thought experiment: forget everything you know and have heard about Elena Kagan. Then imagine what you’d expect from a nominee who a) clerked for Abner Mikva and Thurgood Marshall; b) worked for Clinton and Obama; c) was deeply offended by a military policy prohibiting openly-gay volunteers from serving in the military; and d) is described by those who know her well as “clearly” being a Democrat.

At face value, this person doesn’t sound like a conservative. For that matter, this person doesn’t sound like the kind of high court nominee that will frustrate and disappoint the progressive base.

Indeed, Kagan’s champions include some very reliable voices. John Podesta, who worked with Kagan in the Clinton administration, argued today, “Unlike … conservative justices, Kagan understands that it is emphatically the province and duty of the judiciary to say what the law is, not what a powerful industry says it should be. In other words, General Kagan will be a much-needed progressive voice on a Court dominated by conservatives who believe in one set of laws for the powerful, and another set of laws for ordinary Americans. She will make an outstanding Supreme Court justice.”

And yet, doubts linger. I suppose it comes back to the seven words in the Bazelon piece: “Trust us, the White House is saying.” One either inclined to take that leap of faith with the White House or not.