At least that's Stuart Taylor Jr.'s take in a May 10 Newsweek "Web exclusive" that garnered prominent real estate on the magazine's Web site today (see screencap above at right).
Taylor presented Kagan more as a technocratic "establishmentarian" than an ideologue or partisan, despite her current and former affiliations with the Obama and Clinton administrations respectively:
The New York-born Kagan would increase the Court's domination by establishmentarians who attended Harvard and Yale law schools—six and three justices, respectively—and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.
Kagan gets it from both sides. Although she has been extraordinarily careful to keep her views on issues such as abortion, race, and religion to herself, most conservatives—convinced that Obama would never have chosen her had he not been confident of her positions on the big issues—suspect that she's too liberal. And some left-liberals warn that she's not liberal enough.
What's more, when noting Kagan's liberal defenders, Taylor emphasizes the talking point that Kagan's controversial stands have just been baggage from her roles that are by their nature adversarial and not impartial like a judge's:
Ironically, Kagan also has forceful critics in the same left-wing circles that Beinart faults her for appeasing. They are especially unhappy with her failure to compile a record of aggressively advocating liberal causes over the years, with her hiring at Harvard of two or three conservative, white male professors—and too few women and minorities—and with her arguments as solicitor general in support of Obama terrorism policies similar to those of the Bush administration.
But Kagan's many liberal champions point out that in defending Obama's policies, she has just been doing her job, not advocating her own views. And even the liberals who are unhappy with her won't try to defeat her.
While that's fair to a point, Kagan resume is largely partisan and political without the benefit of having held a judicial post. Given those facts, questions about her inclination to wind up being an activist liberal justice are legitimate.
Nonetheless, Taylor concluded by predicting a favorable outcome for Kagan in which conservative Republicans can at least score political points:
A poised oral advocate, Kagan also seems likely to dodge with ease thrusts thrown by Republican senators during her confirmation hearing while deftly ducking demands to state her views on the issues, as have all recent nominees. The Republican senators surely know this. Their game is not to defeat her, or even to pin her down. It is to paint Kagan, her president, and their party under the confirmation-battle klieg lights as effete liberal elitists, to fire up the conservative base, and to win over independents.
And part of Kagan's challenge will be to show that while she may hail from Harvard, she has the heart of an empathetic, all-American patriot.
