(Professor Lessing is very active in working toward public financing of federal campaigns. He is a Professor of Law, Harvard Law School and Co-founder of Change Congress and a big support of the Fair Elections Now Act.)
I began my career teaching at the University of Chicago Law School. Obviously, relative to the others there at the time, I was something of a slouch. One of my colleagues became President of the United States (Obama). Two were already prominent federal judges (Posner, Easterbrook); two more would become federal appellate court judges (Michael McConnell, Diane Wood). One would become the senior regulator at OMB (Sunstein). And one, after being blocked by Republicans from becoming a federal judge, would become dean of the Harvard Law School, and then Solicitor General of the United States (Elena Kagan).
Two of these superstars are now being considered by the President to replace Justice Stevens on the Supreme Court -- Diane Wood, and Elena Kagan. Both would be extraordinary appointees. But while I've been reassured that many see this clearly with respect to Diane Wood, I have been puzzled that more have had questions about Kagan. That puzzlement, as well as the encouragement of some friends, has led me to try in this essay to map out a case for Kagan. Not a case against Wood: Glenn Greenwald and Sheryl Gay Stolberg have written powerfully about Judge Wood's strengths, and the clarity of her judicial philosophy. Those accounts are right and true; there's no doubt Wood would make an outstanding justice. But instead, I want to sketch (or "sketch": I'm a law professor, and this is wildly too long) the case for Kagan that seems strangely absent from the progressives that at least I've read.
For the core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton's nickname for her: "Judge"). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.
In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.
The bottom line calculus for me in this case could not be clearer. Obama's second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It's not enough to appoint someone who will cast the right vote. We need someone who will make majorities.
http://www.huffingtonpost.com/lawrence-lessig/a-case-for-kagan_b_551511.html
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