Kagan The Cipher

by Pejman Yousefzadeh on May 11, 2010


David Brooks on the would-be new Supreme Court Justice:

Kagan has many friends along the Acela corridor, thanks to her time at Hunter College High School, Princeton, Harvard and in Democratic administrations. So far, I haven’t met anybody who is not an admirer. She is apparently smart, deft and friendly. She was a superb teacher. She has the ability to process many points of view and to mediate between different factions.

Yet she also is apparently prudential, deliberate and cautious. She does not seem to be one who leaps into a fray when the consequences might be unpredictable. “She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life,” John Palfrey, a Harvard law professor, told The Times. “She is very effective at playing her cards in every setting I’ve seen.”

Tom Goldstein, the publisher of the highly influential SCOTUSblog, has described Kagan as “extraordinarily — almost artistically — careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly.

She has become a legal scholar without the interest scholars normally have in the contest of ideas. She’s shown relatively little interest in coming up with new theories or influencing public debate.

Her publication record is scant and carefully nonideological. She has published five scholarly review articles, mostly on administrative law and the First Amendment. These articles were mostly on technical and procedural issues.

All of this could mean, of course, that Kagan will end up being a formidably opaque player on the Supreme Court. But the word “opaque” should trouble us; nearly 20 years ago, Clarence Thomas was attacked for supposedly lacking opinions. Will the same people who criticized Justice Thomas on this score give Elena Kagan a pass for being so resolutely non-controversial that she has been rendered almost intellectually uninteresting? This isn’t a knock on Kagan’s smarts; we know that she has plenty of those. But in search of a seat on the Supreme Court, she has sought to so resolutely hide her light under a bushel, that one wonders whether she would bring anything particularly valuable to the Court.

No wonder liberals are dissatisfied with Kagan. And of course, past statements to the contrary notwithstanding, Kagan is not going to be forthcoming about her views anytime soon. Greenwald:

What makes this reversal particularly troubling here is that having Kagan answer questions in her confirmation hearing is the only way to learn about who she is, how she thinks, and what kind of Justice she would be. Given what an absolute blank slate she has made of herself, having her answer questions about prior Court rulings is the only conceivable way for a rational person to make any meaningful judgments about the impact she would have on the Court. But the “conventions” of the confirmation process — which she once condemned but now apparently intends to embrace — are designed to obfuscate rather than illuminate who a nominee really is. When a nominee is asked whether they agree with past Court decisions, they say their opinion is irrelevant because it’s settled law and they will apply it. When asked about matters the Court hasn’t yet decided, the nominee says that they can’t give their opinion on cases that might come before the Court. So, by design, we end up learning absolutely nothing about the nominee’s views or approach to the law.

That was the absurd ritual which Kagan rightly condemned in 1995 and demanded be changed. But now that she’s in a position to do so, she suddenly has a change of heart (indeed, her “change of heart” was first announced during her confirmation hearing as Solicitor General). This is the sort of blatant hypocrisy and intellectual dishonesty that pervades our political process and, more than anything, makes it so rancid and spawns pervasive cynicism. The views expressed by Beltway mavens are so often a by-product exclusively of self-interest and political advantage, not any actual conviction, and it’s not hard for even casual observers to see that.

[. . .]

The only antidote for Kagan’s deliberate blank-slatism would have been for her to forthrightly answer questions about her legal and Constitutional views during her confirmation hearings. But now that she’s the nominee, she’s had a sudden change of heart and decided that such candor is not really advisable after all. I still genuinely hope she will change her mind yet again and be forthcoming about what she actually believes. But if she doesn’t, we’ll witness the truly absurd spectacle of putting someone on a deeply divided Supreme Court for the next 3 or 4 decades — the last venue that occasionally safeguards core liberties by a fragile 5-4 majority that she could easily obliterate — without having any clue as to what she thinks about much of anything, all while Democrats and progressives cheer for her as though they’re remotely able to know what they’re cheering.

Other than the fact that the Obama Administration may prefer a stealth nominee to one with a record–the better to avoid political headaches, my dears–what is there about this nomination that sets it apart, makes it valuable, and causes it to be worthy of Senate confirmation?

Anyone? Anyone? Bueller?

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