Liberals wary of Supreme Court candidate

WASHINGTON - Is Elena Kagan the Democrats' Harriet Miers, with a record so thin that it blurs where she stands on constitutional issues?

Some liberal activists are raising that question as President Barack Obama considers about 10 candidates to replace Justice John Paul Stevens, who on Friday said he'll retire this year.

Kagan, 49, a native New Yorker, former Havard Law dean and now U.S. solicitor general, is on the short list as Obama prepares to meet with Senate leaders at the White House next Wednesday to discuss the confirmation process.

Kagan appears to have the support of many Democrats, particularly her former colleagues in the Clinton administration, and the White House now.

Yet some are comparing Kagan with Miers, who withdrew as the choice of President George W. Bush to fill a second Supreme Court vacancy after activists on the right complained loudly that she had too scant a record to show she would be reliably conservative.

Tuesday, liberal New York lawyer-turned-writer Glenn Greenwald gave voice to concerns being shared privately by some liberal activists in a Salon.com essay titled, "The case against Elena Kagan."

He urged efforts to stop Obama from nominating her.

"Why would any progressive possibly want to take risks like that, given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?" Greenwald wrote.

"This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O'Connor and instead choose Sam Alito."

Greenwald and others said what they know of Kagan's views suggests she might actually move the court to the right of where it stands now, especially on executive power.

Like other liberal detractors, Greenwald also points to how she has befriended top members of the conservative Federalist Society, which Bush turned to for many of his judicial and legal appointments.

Greenwald said Tuesday many Obama loyalists criticized his Salon essay.

Supreme Court attorney and commentator Tom Goldstein agreed Kagan had a slim record, but writes that he thinks she would mirror Obama's views of the law and the constitution.

"She's not a hero of the left," said Jeffrey Segal, a Stony Brook University political scientist who studies the court. "But the left has to realize that, no matter what happens, [Justice] Anthony Kennedy is still at the center of the court" - making him, not Obama's next appointee, the most important.