For once, all the speculators may be right: Solicitor General Elena Kagan and Judge Sonia Sotomayor are reportedly among the White House's top candidates to replace retiring Justice David Souter on the Supreme Court. If either of them is picked, the critics will be ready -- some are already digging up old statements and writings from the two women that could bolster attacks against them.
A video of Sotomayor that's been making the rounds of the blogosphere and on Capitol Hill recently might end up being Exhibit A against her, used to bolster the familiar charge against liberal judges: She's an activist who'll legislate from the bench. In the clip, which is below, Sotomayor tells an audience at Duke University in 2005 that appeals courts are "where policy is made." She adds, to laughter, "I know that this is on tape and I should never say that because we don't 'make law,' I know, OK, I know, I'm not promoting it and I'm not advocating it, I'm, you know..."
It does seem to be somewhat damning -- but the full context, as blogger Orin Kerr noted, makes the comment a different matter entirely. He writes, "The comment arises when she is explaining the difference between the district court and the court of appeals, and thus the difference in clerking at the two different environments. In the district court, she says, the goal is justice in the individual case. You need to think fast, and make a decision immediately. In contrast, at the court of appeals, the judges are usually -- not always, but usually -- worried about how the legal precedent will apply to the next case. So you need to be more contemplative at the circuit court level." (The full video, which isn't embeddable, is available here; her remarks come at about 43:40 in.)
The dirt on Kagan is older. The Weekly Standard's Michael Goldfarb, who was a spokesman for John McCain during the presidential campaign, dug up Kagan's undergraduate thesis from Princeton, which is titled, "To the Final Conflict: Socialism in New York City, 1900-1933." The excerpts from it that Goldfarb quotes make it appear as if she herself might be a socialist, or at least sympathetic to socialist ideas, and Goldfarb writes, "Her political sympathies (at the time) seem quite clear -- and radical."
Princeton History Professor Sean Wilentz, who served as Kagan's thesis advisor (and who has previously written for Salon) told Salon that she is not a socialist, and that the question she was asking with the paper "was an absolutely standard" one about why the U.S. hasn't had the same kind of radical movements that have flourished in the rest of the world.
"Was she sympathetic to the socialists? Only insofar as the socialists were raising urgent issues about industry and labor even before unions were quite legal nationwide," Wilentz says. He added, "I'm proud of [the thesis]... I wasn't the only one who liked it. She went on to win the Sachs fellowship to Oxford, which is about as prestigious a fellowship as Princeton awards."
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