Big shoes to fill (6/11/2010)

If she is confirmed by the U.S. Senate, Elena Kagan will assume the most distinguished seat on the Supreme Court, writes David Adler.

If, as expected, Solicitor General Elena Kagan is confirmed by the U.S. Senate to replace retiring Justice John Paul Stevens, she will inherit what is widely viewed as the most distinguished seat in the court’s history. It is widely believed, moreover, that she possesses the legal talents and skills worthy of that seat, although, as with most things, time will tell.

For nearly a century, this seat has been held by only three men, each of them progressives: Louis Brandeis, William O. Douglas and Stevens.

Brandeis, placed on the court by Woodrow Wilson, enjoys universal acclaim as one of America’s greatest judges, for his judicial temperament, eloquent writing and penetrating analytical powers.

Douglas, named by Franklin D. Roosevelt, holds the record for longevity on the court — 36 years — and despite his critics, he established a record as a champion of civil rights and liberties. He’s also regarded as the “great dissenter,” since more of his dissents became law than those penned by any other member of the court, including those written by legendary Oliver Wendell Holmes. The court, it has been said, finally caught up with Douglas.

Stevens, nominated by Gerald Ford, succeeded Douglas in 1976; when he retires at the end of this term, his length of service will match that of the great Chief Justice John Marshall and the redoubtable Chief Justice William Rehnquist.

When nominated, Stevens was regarded as a conservative; by the end of his career, he had become one of the leading progressive voices on the court. When asked about his shift to the “left,” he invoked Justice Harry Blackmun’s explanation for his own migration to the progressive end of the bench: “I didn’t move to the left; the rest of the court moved to the right.”

Brandeis’ nomination to the court triggered the most contentious nomination fight in the court’s history. Acknowledged as a brilliant lawyer, Brandeis, the first Jew nominated to the court, was caught in the cross hairs of anti-semitism and corporate outrage.

It may be said that Brandeis “earned” the enmity of the corporate world. As a young lawyer, Brandeis defended corporations in the courtroom. His impressive victories brought fame and fortune. With a well-heeled bank account, Brandeis switched sides. He followed his heart and progressive values, and became known as “the people’s lawyer.” His domination of corporate opponents led them to bitterly oppose his nomination to the court. The confirmation battle lasted some five months. Among those who voted against him were Idaho Sens. Borah and Brady. They believed he lacked “judicial temperament.” By the end of his distinguished career, Brandeis was hailed by the legal profession as a model judge.

Adler is a political science professor at Idaho State University who has lectured nationally and internationally on the Constitution and the presidency.