The Not-So-Hidden Message Beneath Elena Kagan's Nomination

Solicitor General Elena Kagan hit all the right notes after President Obama announced Monday he was nominating her to succeed retiring Justice John Paul Stevens on the U.S. Supreme Court.

It’s too bad the president hit a couple of wrong notes. The guy just can’t help himself from bashing corporations whenever he can.

First, the positives about Kagan. The 50-year-old former Harvard Law School dean reinforced her reputation for grace and collegiality, thanking her “remarkable group” of lawyers and staff at her current job, and noting that her professional life has been “marked by great good fortune,” such as clerking for the late Justice Thurgood Marshall. The civil rights pioneer, she said, “did more to promote justice over the course of his legal career than did any lawyer in his lifetime.”

Some Republicans already are seizing on Kagan’s ties to Marshall, criticizing her as a judicial activist who won’t stick to what the Constitution says, but instead will bend the Constitution to fit today’s circumstances. The same argument would be made, however, against anyone nominated by Obama. One of the main traits that he praised in Kagan is her “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.”

As solicitor general, Obama said, Kagan has “repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations.” One of those cases, he noted, was Citizens United, which concerned whether it was constitutional for Congress to limit political advertising by outside groups during campaigns. She lost the case, of course. The court ruled that the First Amendment means what it says—that Americans have an unlimited right to express their views, even if they’re organized as corporations or unions.

Obama, however, tried to make a virtue of Kagan’s decision to argue the case.

“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the court,” the president said.

That, he added, “says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people.”

“In a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,” he said.

Obama, a former constitutional law professor, still can’t accept that the Supreme Court didn’t see this case his way. He needs to get over it.

But he can’t, apparently, because the case involved corporations. He doesn’t like them. He’ll give the private sector credit for creating jobs, but he doesn’t seem to think that the people who keep this engine running are as admirable as those who—like himself—chose a career in government, academia, or community organizing.

Here’s how he chose to praise Kagan’s career path:

“Someone as gifted as Elena could easily have settled into a comfortable life in a corporate law practice,” he said. “Instead, she chose a life of service—service to her students, service to her country, service to the law and to all those whose lives it shapes.”

There’s nothing wrong with Obama’s path or Kagan’s path, but there’s nothing wrong with being a corporate lawyer either. Their work helps businesses create jobs. It’s not good enough for Obama, however, and it’s not good for many of his political allies either.

John Podesta, president and CEO for the Center for American Progress, worked with Kagan during former President Bill Clinton’s administration. He said Kagan “will have no patience for well-heeled interest groups who believe that their wealth and influence should grant them immunity from the law.”

Corporations aren’t asking for immunity from the law; they’re just asking that their rights be respected. Kagan has shown a willingness to engage with people who have different perspectives—she recruited conservatives to serve on the Harvard Law School faculty. Kagan could teach Obama a thing or two.