The nomination of Elena Kagan has caught my attention, because like it has some many other times, American Religion and American Politics are merging. The Right doesn’t like her, nominally because of her pro-choice stance, and others because she looks gay. The Left doesn’t care for her because of her strong stance against Civil Liberties and her pro-stance on Executive Power.

It was first announced that self-described conservative but generally known to be liberal Justice John Paul Stevens was going to retire, Glenn Greenwald wrote a piece at Salon criticizing Kagan as being too moderate and stated that he feared that she would move the court to the right. At the moment, the highest court in the land is split 5-4 conservative (although Justice Kennedy is seen as a Swing Vote), but if Kagan pulled a Souter, it might very well be 6-3 conservative. Since she would be the youngest member on the court, it is possible that President Obama’s legacy would be one in which he strengthened the conservative hold on the Supreme Court. Greenwald, and I am apt to agree with him, defines ‘right’ as pertaining to the previous administration’s view on Executive Power and law championed on the Court by Justices Thomas and Scalia. He goes on to note that unlike others who were on the list, Kagan has not addresses today’s legal issues:

Recognizing the severity of this radicalism, numerous legal academicians used their platforms — and created new ones — to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush’s policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal — Kagan’s not-at-all-progressive Deputy Solicitor General — was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees — in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).

She is, as William West put it, a fan of presidential power. Further, her social justice record generally revolved around what she was told to do, most notably during her years in the Clinton White House; however, during her confirmation hearing for Solicitor General, she denied that a constitutional right for gay marriage existed. Later, she was charged with putting together a legal argument, which was rather weak, for the Defense of Marriage Act (DOMA).

The right is leading the charge against Kagan based primarily on two grounds: Gay Rights and Abortion. She is on record for criticizing the military’s Don’t Ask, Don’t Tell policy, but so are many politicians on the Right. Further, she fought to repeal federal restrictions on monies spent for abortion (although she supported a ban on late-term abortions). While her judicial experience is essentially blank, her social fights are not. She believes in equal rights for all American citizens, which Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, criticizes, “Given this strong hint of activism on behalf of gay rights and the fact that she has been recommended by a president committed to the gay, lesbian, bisexual, transgendered agenda, she should be questioned extensively on the issue,”

Land further believes that she should be questioned on her stance on the First Amendment. He cites ‘EEOC Commissioner Chai Feldblum, a former Georgetown University law professor who has argued that when homosexual issues collide with religious liberty, “I am convinced society should come down on the side of protecting the liberty of LGBT people.” Feldblum also wrote, “Protecting one group’s identity liberty, may, at times, require that we burden others’ belief liberty.”‘

How would Kagan come down on the side of religious liberty? Already, she has shown that she is conservative-minded on the authority of the Executive Branch and the law, seeing them as something that needs to be strengthened beyond the thoughts and ideals of the authors of the Constitution and two centuries of practice (excluding Nixon, of course). Could she apply the same judicial philosophy when it comes to religious liberty? It appears that she favors a strong State, meaning that quite possibly, a harmonious state might need to sacrifice a few things along the way.

With justified complaints from the Left and the Right, the nomination process will be an exciting one, perhaps as interesting as the nomination of Clarence Thomas and Robert Bork.

Maybe this is a testament to the President’s Pragmatism, in that he has picked a nominee which angers both sides because he feels that she alone is the best person for the job.