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It's not as though she has the option of getting up to the SCOTUS and choosing not to defend the current law, after all.
That's exactly what liberal activist judges do and you're delusional if you think she wouldn't.
Case in point Roe v Wade. Before that abortion was illegal, which means against the law. The activist judges simply determined that wasn't a good law and made a new one.
Kagan will vote not based on law or precedence but based on her personal ideology, just like Vader.