Jonathan Chait

Is Kagan A Blank Slate?

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Paul Campos has a provocative column for TNR making the case that Elena Kagan is an unknown legal quantity. I agree with this logic but not his conclusion. (This is not uncommon.) Before I get to that, since his credentials have been called into question, I thought I'd share. Paul is the son of Spanish immigrants who fled the Franco regime and made their way to Kalamazoo, Michigan. Paul attended the University of Michigan as an undergraduate and for law school, where he made law review and graduated magna cum laude. He's a law professor at the University of Colorado, and has published numerous scholarly and popular articles on wide-ranging topics, reflecting his sharp and eclectic mind. In 2008, he wrote for TNR a diary of his accidental selection as an Obama precinct captain, and his subsequent choice to follow through on it:

6:45 p.m.: Three middle-aged Hillary supporters are talking about Ann Coulter. “It’s sad that someone like her went to Yale Law School,” one of them says. “She actually went to Michigan,” I tell her. She gives me an annoyed glance, notices my Obama gear, and replies that she’s quite sure Coulter went to Yale. “I went to Michigan and she was in my class,” I respond. “You’re wrong,” she says flatly. I walk away speechless. I’m beginning to dislike Hillary more by the minute.

7:00 p.m.: Chaos reigns. There must be close to 1,000 people in the gym, and there are still hundreds waiting to get in. The party has run out of registration cards, and supposedly you can’t vote if you don’t register for the caucus. I tell people to just write the relevant information on a piece of paper and hand it to me. “Are you sure that’s legal?” a man asks. “I’m a law professor, and I can assure you it is,” I tell him. Half that statement is actually true.

Anyway, Paul makes a good case for why Kagan's credentials are unusual for a Supreme Court justice. It's certainly true that she has avoided expressing views about legal questions. I disagree, though, with the conclusion that this makes her a blank slate. There is a lot you can glean about a person based on professional and personal interaction. In some ways, these experiences can teach you more. Nothing about Antonin Scalia's judicial record would prepare you to expect him to produce a sweeping activist ruling like Bush v. Gore. But if you knew him personally, understood his conservatism and deep resentment of the left, then you might not be shocked. All this is to say that I believe it is possible, through the kind of engagement Obama and others have had with Kagan, to paint a portrait of a legal mind no less accurate than the portrait we have of many Supreme Court nominees.

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