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Obama's "Bipartisan" Supreme Court Choices? Maybe Not

The Times is trying to sell Elena Kagan and Janet Napolitano as moderate choices for the soon-to-be-vacant Supreme Court seat. But just how "bipartisan" are they?

Two recent stories about two of Barack Obama's potential Supreme Court choices = Two stories pondering whether the nominees might be too moderate to satisfy the left wing of the Democratic party. To complete the parallels, both stories feature a quote from Michael Ratner of the far-left Center for Constitutional Rights saying that the potential nominee to replace retiring Justice David Souteris not liberal enough. But just how "bipartisan" are Elena Kagan and Janet Napolitano anyway?

First on Sunday came Eric Lichtblau's profile of Elena Kagan, former Harvard Law School dean: "Potential Justice's Appeal May Be Too Bipartisan." The text box emphasized: "Some admirers on the left worry about all those admirers on the right."

When Elena Kagan went before the Senate Judiciary Committee in February as President Obama's nominee for solicitor general, Republicans were almost as effusive as the Democrats in their praise for her.

There was no daylight between Ms. Kagan, who was the dean of Harvard Law School, and Senator Lindsey Graham, Republican of South Carolina, as he led her through a six-minute colloquy about the president's broad authority to detain enemy combatants. "Do you believe we're at war?" the senator asked. "I do, senator," she answered crisply.

Indeed, there was so much adulation in the air from Republicans that one Democrat, Senator Amy Klobuchar of Minnesota, joked at the hearing that she understood how Ms. Kagan "managed to get a standing ovation" from the Federalist Society, a conservative legal group.

But with Ms. Kagan now regarded as one of the leading contenders for a seat on the Supreme Court, her reputation for finding the middle on difficult legal and political issues could prove both a strength and a liability. As much as some Republicans praise her, a number of liberals say they are suspicious that she may lean too far toward the middle.

Ed Whelan at National Review Online is not as convinced as the Times is about her bipartisanship, and has numbers toprove it:

However sensible Kagan might be on this slice of issues, it doesn't follow that conservatives should welcome her nomination. For on a host of other issues - abortion, same-sex marriage, race and gender quotas, and an aggressively secularist reading of the Establishment Clause, to name just a few - there's no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist. In this regard, it's striking that the Times article, which asserts that "Republicans were almost as effusive as the Democrats in their praise" for Kagan at her confirmation hearing for solicitor general, fails to note that a full 31 senators ended up voting against Kagan's confirmation.

Another potential Obama Supreme Court nominee - and alleged moderate - was profiled in Tuesday's paper by reporter Ginger Thompson: Obama's Secretary of Homeland Security Janet Napolitano.

The headline informed readers that "Napolitano Appears to Straddle Political Divide." The text box: "A possible Supreme Court nominee is hard to predict." Unlikely alliance with notorious Sheriff Joe Arpaio, he of the pink underwear and green bologna for prisoners:

Sheriff Arpaio, who drew broad support from law-and-order conservatives and remains the focus of civil rights scandals, went on to support Ms. Napolitano's political ambitions. And Ms. Napolitano went on to become a wildly popular Democrat in a state dominated by Republicans, winning one election as attorney general, two as governor and an appointment as President Obama's homeland security secretary.

But now that she has landed on the short list of people being considered to succeed Justice David H. Souter on the Supreme Court, those old alliances are raising questions about whether her commitment to upholding the law is driven as much by political consideration as strictly legal ones.


Although Ms. Napolitano, 51, is widely praised for having an open mind, sharp analytical skills, and a deep understanding of the law, critics say her sensitivity to political winds could make her similarly unpredictable.

As homeland security secretary, she has faced Republican outrage for an intelligence assessment that characterized war veterans as potential threats.

Her liberal critics see her record on immigration enforcement and worry that although she describes herself as a moderate, she is more prone to lean toward the right - and the likes of Mr. Arpaio - than to the left.

"She seems malleable" said Michael Ratner, president of the Center for Constitutional Rights. "That doesn't suggest she'd position herself as a strong liberal on the court," Mr. Ratner said. "It doesn't say that's not how she'd position herself. But we just don't know."


Ms. Napolitano takes pride in defying easy labels. Her supporters said her positions reflect clear-minded and nuanced assessments of problems, that she sees good ideas in people on both sides of the political divide, and that she is driven less by ideology than by a determination to achieve results.

In other words, a pragmatist just like Obama (according to the Times, anyway).

But the end of Thompson's story contained one clue that she's not quite as nonpartisan as the paper would have you think - she defended Anita Hill during confirmation hearings for Justice Clarence Thomas.