Barring the unexpected, the nomination of Solicitor General Elena Kagan to serve as a justice of the Supreme Court will be confirmed. The tradition, and a good one it is, based on mutual respect, compromise and acknowledgment of philosophical differences, is that conservative presidents get to nominate more or less conservative judges, and liberal presidents liberal ones.
Is Ms. Kagan liberal, or, as liberals now say, progressive? Of course. She worked as an associate counsel in the Clinton White House, just as John Roberts as a young man was an associate counsel in the Reagan White House. She is now an Obama appointee. Along the way she visited the progressive stations of the cross, from Ivy League education (Princeton University and Harvard Law School, with a master’s from Oxford along the way) through a career in academia (University of Chicago Law School professor, dean of Harvard Law) and government.
We can infer a great deal about her politics but do not know a great deal, because she has been throughout her career circumspect to the point of self-censored.
Ms. Kagan needs and deserves a tough and spirited grilling in the Senate Judiciary Committee as to her philosophical assumptions and judicial approach. Unfortunately, senators will likely do what they did in the Roberts, Alito and Sotomayor hearings, and that is make speeches, put forth extremely long-winded questions, and barely let the nominee speak. They should stop that.
Because little is known of the views she holds, much is made of her manner. She seems to respect either conservatives or conservatism, it’s not clear which, seems to have a gift for the managerial side of things and for “forging consensus,” as the administration keeps telling us. She seems to get along with everyone and not to be insane.
“Appears not to be insane” is actually a major plus in all nominees now, as is collegiality. Ruth Bader Ginsburg is one of Antonin Scalia’s closest friends; personal relationships have always helped the court work. Ms. Kagan was well liked by conservatives as she rose. She will don the big black robe, and the nation will continue.
What is interesting about the nomination is that all the criticisms serious people have lobbed about so far are true. Yes, she is an ace Ivy League networker. Yes, career seems to have been all, which speaks of certain limits, at least of experience. She has been embraced by the media elite and all others who know they will be berated within 30 seconds by an irate passenger if they talk on a cellphone in the quiet car of the Washington-bound Acela. (If our media elite do not always seem upstanding, it is in part because every few weeks they can be seen bent over and whispering furtively into a train seat.) Ms. Kagan and her counterparts all started out 30 years ago trying to undo the establishment, and now they are the establishment. If you need any proof of this it is that in their essays and monographs they no longer mention “the establishment.”
Ms. Kagan’s nomination has also highlighted America’s ambivalence about what we have always said we wanted, a meritocracy. Work hard, be smart, rise. The result is an aristocracy of wired brainiacs, of highly focused, well-credentialed careerists. There’s something limited, even creepy, in all this ferocious drive, this well-applied brilliance. There’s a sense that everything is abstract to those who succeed in this world, that what they know of life is not grounded in hard experience but absorbed through screens—computer screens, movie screens, TV screens. Our focus on mere brains is creepy, too. Brains aren’t everything, heart and soul are something too. We do away with all the deadwood, but even dead trees have a place in the forest.
The ones on top now and in the future will be those who start off with the advantage not of great wealth but of the great class marker of the age: two parents who are together and who drive their children toward academic excellence. It isn’t “Mom and Dad had millions” anymore as much as “Mom and Dad made me do my homework, gave me emotional guidance, made sure I got to trombone lessons, and drove me to soccer.”
We know little of the inner workings of Ms. Kagan’s mind, her views and opinions, beliefs and stands. The blank-slate problem is the post-Robert Bork problem. The Senate Judiciary Committee in 1987 took everything Judge Bork had ever said or written, ripped it from context, wove it into a rope, and flung it across his shoulders like a hangman’s noose. Ambitious young lawyers watched and rethought their old assumption that it would help them in their rise to be interesting and quotable. In fact, they’d have to be bland and indecipherable. Court nominees are mysteries now.
Which raises a question: After 30 years of grimly enforced discretion, are you a mystery to yourself? If you spend a lifetime being a leftist or rightist thinker but censoring yourself and acting out, day by day, a bland and judicious pondering of all sides, will you, when you get your heart’s desire and reach the high court, rip off your suit like Superman in the phone booth and fully reveal who you are? Or, having played the part of the bland, vague centrist for so long, will you find that you have actually become a bland, vague centrist? One always wonders this with nominees now.
There should be and needs to be a vigorous, rigorous grilling of Ms. Kagan. But one fears we’ll all listen and come away not knowing where she stands and what she thinks. Instead, you know what we’re going to hear: opaque, convoluted, impossible-to-understand statements. “I appreciate your raising that issue, Senator. The Blewblew v. Blahblah decision was ultimately reflective, as you suggest, of jurisprudential assumptions going back at least far as Dewdew v. Dahdah as interpreted by Justice Jackson, who did not nullify, and reinterpreted by Justice Brandeis, who did, as you note.” Viewers will try to listen, give up, and wind up thinking, “I like her hair.” Everyone in public life says, “I can’t believe they only care about my hair,” but they’re lying. That’s all they want you to think about.
Actually what a nominee is likely to say is something like this: “The question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis, along with the settled expectations, whether a precedent has been eroded.” That was now-Chief Justice John Roberts in his confirmation hearings on Sept. 13, 2005, and his testimony was among the more lucid of recent years.
But mostly in confirmation hearings it is senators who speak, who give long soliloquies and put forth extremely long and circuitous questions. Pose, vanity and camera hogging are the order of the day. In the first, long day of Samuel Alito’s hearings, he was barely allowed to speak. After his opening statement, it was all, “Thank you, senator,” and, “Uh—well, yes.”
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The Supreme Court is our great interpreter of law and of the Constitution. It would be nice if Ms. Kagan were given the opportunity and responsibility to answer tough, clear, direct questions. But that would require senators able and willing to ask them.