I added "more" and expanded the "update" below.
[More: The fact she is a non-judge will be used as a means to show that she adds diversity to the Court, but on a certain level she is more of the same. She adds yet another person with a NYC background, East Coast Ivy League connections and close ties to political elites. Cf. Sidney Thomas, who might be a judge, but who at least provides a Western voice.
Digby also has a good bit on her alleged coalition skills. Again, who knows? But, given that, her main pluses again become less useful balances to her negatives. See also here, particularly the quote by Scott Horton. She's a charming person who wrote an article that is impressive; we are supposed to avoid that she might be too supportive of executive power? Because, you know, we can trust her?]
Jonathan Turley provides some convincing points on the Kagan nomination, including a red flag on one of the few issues she actually wrote about -- free speech matters. One article discusses various cases and basically suggests the basic rule is to determine if the motive of the law is unjust. This could allow various limits, if the law is crafted the right way. Justice Stevens was not free from this sort of thing (e.g., Texas v. Johnson, flag burning; various campaign finance laws). Breyer also takes such an approach at times. It doesn't work for me, particularly to the degree it allows most regulation of porn.
[This is all summary judgments, of course, and the open questions are not only suggested by her saying the articles were something akin to 'trial balloons,' but discussions like this that argue that she might not even support Obama are his bête noire -- Citizen's United!]
I'm also not as open, apparently [good source overall, including links to her writings], to accommodating religion and government. This case has not been mentioned so far by the usual suspects I come across yet, but it is worthy of emphasis. She is cited as pulling back from a legal memo she wrote as a law clerk, which is okay, but she goes pretty far:
Kagan elaborated as well on the memorandum to Justice Marshall discussed above. “I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court’s statement that ‘[t]he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. are not themselves “specifically religious activities,” and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.’ As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called ‘specifically religious activity.’ But I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”
This was an important case that involved religious based abstinence education and provided an opening for the now well established practice of using government funds by religious groups even in this ideological landmine. The dissent was very wary, in effect, making the case it is not so "dumb" that programs that "to promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations" very well might be presumed problematic when religious groups funded by the government. Doubtful Kagan will be as for separation of church and state (some of Stevens' most eloquent opinions) as her predecessor.
Other than her apparent ability to form coalitions (Stevens and Brennan managed to do so as well while being more liberal than many think she will be; also, what about down the road, ten years for instance, when the current conservatives all might not be here any more?) and her charming personality, a drawing card is her influential article on executive power. See, e.g., here. Greenwald has noted that various people note she supports executive power, her work in the Clinton/Obama Administrations suggesting why, but the article appears to be best as a discussion piece:
Kagan identified and gave a label to an important development in the contemporary administrative state, the absorption into the White House of actions formerly -- and formally -- attributed to administrative agencies (both executive branch agencies such as the Food and Drug Administration and "independent" agencies such as the Federal Communications Commission).
I don't really know where that will take you. Will it be a more trusting view of agency discretion or such? Is that necessarily a good thing? Congress in recent years has a tendency of giving the President a lot of discretion, which can go either way, and I'm not overly enthused about giving the President a lot more power in that department. I also fear it will be used by Republicans too. Finally, I'm not too enthused about some of the discretion Obama is using now. This aside from requests for Congress to limit Miranda!
[Update: I skimmed the article (it's blocked via a firewall where I accessed it) -- it's a bit thick. I think this agnostic approach, so to speak, is a useful one. It is getting some praise, but maybe a bit too much -- it is after all but one article. Others have written lots of articles of some length or even books. So, I won't read too much in this one, but others can't use if to help build her up too much either.
Also, she mentions congressional oversight and judicial review provides checks here. What if the former isn't provided and the latter is controlled by conservatives? Plus, separation of powers is not just a matter of voluntary checks; this is why legislative and line item vetoes were declared unconstitutional. Kagan might find them acceptable too. So, her support of Congress checking "presidential administration" when it feels like it to me is not enough. Again, this is but a red flag and question mark.]
A possibly middle path on free speech (Kennedy is if anything more absolutist in this area ... this is not a promising development) and a thoughtful but mixed bag at best substantively view on some aspects of executive discretion doesn't do enough for me. It helps though to add some chops given some put her out as some sort of legal lightweight, even if she was a great administrator (only a dean at a top law school, you know). I also think her take on military recruiters on campus is a mixed bag. As Bazelon noted, it was not a "radical" path. I don't quite buy this though:
If she really believed "Don't Ask Don't Tell" was wrong, then why did she go along with the compromise that let Harvard keep its federal funding? That's the problem with the middle ground: It's not pure. You can criticize the law schools for buckling under when their universities were faced with the loss of hundreds of millions in federal funds, but, really: What realistic choice did they have?
Wikipedia tells me:
Harvard Management Company (HMC) is a wholly-owned subsidiary of Harvard University, charged with managing the university's endowment, pension assets, working capital, and non-cash gifts.[1] HMC is perhaps best known for managing the university's $34.9 billion endowment,[2] the largest endowment in higher education.[3]
So, if the policy is as horrible as she said it was, why not refuse the money? Boycotts are suggested in Arizona because of the "papers please" law and that will hurt businesses and workers without that sort of money. Idealism sometimes costs something. She might have had only limited discretion as dean (who made the final call on money matters?), but her path seemed basically more talk than hard and fast action. And, the article noted some LGBT groups felt betrayed.
Settling doesn't mean you get nothing. She will bring a fresh view and will provide consistent liberal votes on various issues, though it is likely that it will be moderate liberal votes, to replace someone who was both a coalition builder AND someone who repeatedly provided strong liberal opinions/dissents. There are lots of options, of varying charm, and there were better ones here. I will give Turley the last word:
For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.
Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.
My heart is not in it as much this time as last. Sotomayor was a good pick, criticism resting on phony "wise Latina" stuff and the idea that she might be a bit too workman-like and moderate. So far, she seems to be consistently liberal, at least as much as the current Court offers that. We shall see how Kagan fares.