Caution and Elena Kagan

I have to admit that I’m actually quite confused about the criticisms David Brooks and Andrew Sullivan are airing about Elena Kagan’s nomination to the Supreme Court.

Brooks writes:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.

and summarizes thusly:

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

Unless I’m missing something, one of the core complaints that conservative commentators and legislators offer about “liberal” nominees for SCOTUS is that they are “judicial activists”; meaning that they will often find reasons not related to the letter of the law to justify their rulings. Now, I understand that there have been several recent Supreme Court justices that have disappointed conservatives by adjudicating in a more moderate or liberal way than their confirmation hearings may have indicated (David Souter comes to mind), but Kagan – a moderate liberal by most accounts – seems to actually fit the mold of what a conservative would want on the court (as far as they could stomach a liberal); indeed, Brooks indicates that he thinks Kagan would be a “prudential” rather than an emotional justice. Aren’t the use of good judgment and common sense positive traits for a justice? Wouldn’t conservatives favor a justice who is more deferential to precedent and established norms than one who was willing to discover rights that weren’t clearly enumerated?

Here’s Sullivan:

Where is the struggle in her life story that could possibly equate with Sotomayor’s? The NYT is very keen to let us know that the Upper West Side where she grew up was not as tony as it is today. Er, that’s about it. Michael Waldman hilariously cites her real world experience as part of the Clinton domestic policy apparatus. Not a single anecdote in her life-story would be out of place in a Rhodes Scholar application – and I mean that as damning. Every one is just quirky enough – but equally framed to show she represents no conceivable threat to any conceivable liberal interest or authority.

Should every justice have the same background? I fully agree that the court is overstocked with Harvard and Yale grads, but whose fault it that? Even Sotomayor, whom Sullivan seems to make a benchmark of comparison for some sort of requisite background test, is a Yale Law grad. You can dislike Kagan’s relentless careerism all you want, but we (as a society) have fostered this kind of behavior. We often say that people should strive to go to the best schools and those who don’t rock the boat are often rewarded more than those who do. Kagan followed that path to a T and it seems odd now to attack her for merely doing what we expect successful people in our society to do.

Also think about the confirmation process as it currently stands. While it’s true that Kagan herself has argued for more open and forthcoming confirmation hearings, she has just as much incentive to play down her “actual” feelings as any other recent nominee. Given that the hearings are part dog-and-pony show and part witch hunt, there’s almost no reason for a potential justice to do anything but offer banal statements and general support for the rule of law and the role of precedent. Here’s Michael Tomasky in the Guardian:

I think we have here in Kagan an extreme case from which we should be careful to make general statements. As Brooks notes elsewhere, she apparently knew from the time she was quite young that she wanted to be a judge, and comported herself accordingly, never saying anything remotely controversial or, probably, interesting.

Maybe this confluence of facts – a ridiculous process that everyone knows is ridiculous, brought to its logical endpoint of ridiculousness by the presence of a nominee who has been planning for this moment for decades by saying as little as she could – will result in this being the last time we go through this charade in just this way.

Influential commentators needs to think about their role in the confirmation process. Perhaps if they changed their approach to talking about the hearings, they may force nominees to express themselves in a more frank matter. Given that our political discourse at the moment doesn’t reward the open exchange of ideas or allow for the simple notion that reasonable people can disagree, I don’t expect this to happen.

And finally, not every SCOTUS justice needs to be some sort of intellectual titan. While it’s true that liberals often pine for their own version of Antonin Scalia to be nominated, there’s a case to be made for a judge who can accommodate and influence his or her more malleable colleagues without towering over them. Though it may be an overstatement that votes on the court are up for sale, so to speak, it’s also worth noting that a quality now being decried in Kagan (consensus building) was considered a virtue for another potential nominee with a more liberal pedigree. As Glenn Greenwald (an outspoken critic of Kagan) wrote in support of his favored nominee, Diane Wood:

Wood’s ability to craft legal opinions to induce conservative judges to join her opinions is renowned, as is the respect she commands from them through unparalleled diligence and force of intellect.

Again, make the the argument for as long as you want that a former Dean of the Harvard Law School isn’t intellectual enough, but Kagan appears to be both diligent and able to bring disparate tribes together under one banner.

I’m not saying that Kagan is perfect by any means and her hearings may indeed give reasons for pause. But slamming Kagan for approaching her career in such a way that it would place her on the precipice of the job she’s wanted all her life doesn’t seem like it’s her fault. It’s ours.