What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.
There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.
It makes theoretical sense to have someone in the judge's seat who can impartially listen to and make a fair judgement. But nobody is impartial. The school they they went to, the friends they had, the community they grew up, the crime rate around them (or the lack thereof), born to educated parents, educated in a Ivy League institute, marital life (or the lack of it), being a woman... A judge may claim to be impartial in their hearings but still all the arguments have to pass through their collective background filter and by virtue of growing up they would have lost their neutrality.
We'll know quite soon where Kagan stands; after all, she's replacing the liberal lion of the court and Obama wouldn't possibly nominate someone who's going to tilt the court towards right. But as the pragmatist conservative columnist David suggests, it is intellectually dishonest to not express your position on various issues that concern the society and play it safe all along for the sake of professional growth. It is ironical that she had criticized the senate confirmation process for not being insightful enough, while all along she has been preparing herself for such a process.
There's an episode from the melodramatic 'The West Wing' where the president initially leans towards a very centrist judge for openings (two) in the Supreme Court. But then he listens to an extremely liberal and an extremely conservative fight each other inside the Oval and he decides to go with them. I'm glad that Sonia Sotomayor called herself a wise Latina.