Throughout the time that Justice Stevens has been on the bench, he's been known as a perfect tactician. He's been able to pull together both sides and thread the needle in forming an opinion. This is what made Stevens so effective. It wasn't his stances on the issues (those were helpful) it was his ability to do this. His judicial philosphy so to speak. Elena Kagan appears to share these same qualities.
There were two articles that come together and show this precisely:
Kagan and Justice Marshall
Kagan as a Clinton Aide
The first dealt with Elena Kagan as clerk for Justice Thurgood Marshall (perhaps one of the most liberal clerks on the court ever).
A majority on the Supreme Court ruled that the busing fee was constitutional. Justice Marshall, who was 80, was incensed and wanted a fiery dissent. But the 28-year-old Ms. Kagan, now a Supreme Court nominee, thought her boss’s legal analysis was wrong.
Ms. Kagan, recalling the incident in a 1993 tribute after his death, wrote that after she told him that “it would be difficult to find in favor of the child” under legal doctrine, he called her a “knucklehead.” He “returned to me successive drafts of the dissenting opinion for failing to express — or for failing to express in a properly pungent tone — his understanding of the case,” she wrote.
Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.
What was interesting about this particular case is that Justice Marshall knew he was going to lose on the issue. He wanted to take a stand on the pure issue of it (even if there wasn't a legal reason for him to do so). Kagan, like Stevens would, wanted there to be a legal rationale to rule that way and as such suggested to Justice Marshall that he shouldn't take that stand.
As a White House domestic policy aide, Ms. Kagan sent Mr. Clinton a memorandum urging him to endorse the ban sponsored by Senator Tom Daschle, Democrat of South Dakota. The memo anticipated that the Daschle plan would fail but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans.
“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” Ms. Kagan and her boss, Bruce Reed, said in the memo on May 13, 1997.
The president accepted the recommendation, and the White House signaled support for the Daschle amendment the same day. The amendment was defeated, and the Republican-led Congress sent the tougher ban to Mr. Clinton, who vetoed it. An effort to override the veto fell three votes short in the Senate.
The second issue dealt with Kagan's time in the Clinton WH. Kagan wanted to create a ban on late term abortions to attempt to undercut republicans who wanted to COMPLETELY ban abortion (Off Topic: This should be a wakeup call to those not thinking of voting). Here, again Kagan wanted to thread the needle to insure something would get done.
The key point here is that this tells us nothing where Kagan stands. But what it does tell us is that Kagan is very similar to Justice Stevens. She'll do what is possible to cobble the votes together. She doesn't want to write flowery dissents. That's what a liberal version of Scalia would do.
It is because of this that Kagan should be seen as 100% as Stevens' successor. There needs to be a discussion as to what kind of jurist we want. Justice Stevens was never the opposite of Justice Scalia. He was the opposite of Justice Roberts. That's who Kagan appears to be.
UPDATE: TNR kind of makes this obvious
Elena Kagan as the Left's Version of John Roberts
The irony is that the surface similarities between Roberts and Kagan are breathtaking. My conservative colleague Michael Gerson wrote of Kagan: "We know that she is connected to just about everyone in the legal establishment, and most seem to like her." Change "she" to "he," and "her" to "him," and the same sentence could have been written about Roberts.
Considerations that didn't bother conservatives during Roberts' confirmation (his Ivy League background, the fact that he wasn't a military veteran, the content of memos he wrote as an executive branch employee) will now be declared highly significant in Kagan's case.
But none of this will matter. In 2005, Republicans controlled the Senate and Roberts' confirmation was more or less guaranteed. In 2010, Democrats control the Senate and Kagan's confirmation is more or less guaranteed. That means that the issues underlying the left-right differences over the judiciary, the ones senators will actually be voting on, will go largely undiscussed.