JONATHAN CHAIT MAY 10, 2010
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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.
3 comments
Paul Campos is a bright guy and he is amusing, too, but I think you have the better of the argument, Jonathan. Elena Kagan is not exactly an unknown quantity and you follow the holistic approach to Kagan in making your assessment. She is not likely to be the John Paul Stevens of the left, the retiring justice who she has been nominated to replace.
- liberal reformer
May 10, 2010 at 10:08am
My problem is that the question of whether Kagan is really a liberal is a rehash of the Harriet Miers nomination: liberals who don't know her are being asked to trust the president and liberals around him that she's really one of us. Fortunately, that's the wrong question to ask. I fundamentally don't care how liberal she is. I care more about her temperament, about which I'm quite satisfied, and about the content and evolution of her judicial philosophy, about which even Kagan's friends and colleagues seem to know almost nothing. This latter is an issue; we desperately need justices who have philosophy but not ideology. If Kagan holds any ideological commitments similar in form if not content to, say, the conservative ideologies of "originalism" or "textualism", then her nomination will be very bad news. That's the question I'd like to see answered during confirmation.
- rhubarbs
May 10, 2010 at 10:56am
A judge who is not a conservative ideologue will rule the way "liberals" like almost all the time, if not all the time. Kagan is of course not a conservative ideologue, and is in fact pretty darn liberal. The conservative wing of the SC is made up of ideologues - they explicitly believe that the SC has been on the wrong track ever since the Court reversed the "Lochner" cases decided early in FDR's term, allowing the New Deal to go ahead. Almost all non-ideologues (liberals and moderates) agree that the Lochner Court was wrong, and that subsequent cases affirming the fed's right to regulate interstate commerce through wage and hour legislation and all the other New Deal innovations was right, just as all non-ideologues (liberal and moderate) believe that Brown v. Board was right to overrule separate but equal in Plessy. Conservatives did not like Brown, of course, and have been hot and bothered about most of what the Court's done since then - even in the last few decades when Republican appointees dominated. They are like global warming denialists - just as the denialists stand outside the scientific consensus with ideology-based views, so do the conservatives on the Court stand outside most of the Court's jurisprudence, criticizing it from an ideological, rather than a legal standpoint. They didn't like Brown because it desegregated schools, they didn't like "Murray" because it invalidated school prayer, they didn't like Miranda ... - I could continue, but you get the point by now. Since they didn't like the result, they claimed that liberals were result-oriented - making liberal policy from the bench. In fact, it was and is conservatives who are outside the mainstream and "result-oriented" - "originalism" and "the Constitution in Exile" and other conservative "theories" are about trying to mold jurisprudence to get results conservatives like. (When Brown was decided, neither originalism nor CIE were alternative theories - they developed much later in order to find a way to justify reaching a different result - in other words, it's clearly a case of conservatives coming up with a post-hoc reason to criticize rulings they don't like, rather than applying an existing theory they had at the time to question the results.) This is the reason some Republican appointees wind up disappointing ideological conservatives - since Souter, Stevens, Kennedy and O'Connor (and Nixon-appointed moderates before them) viewed cases without sufficient ideological rigidity, they naturally ruled in a non-ideological way in some cases. (All of these folks were appointed by presidents who knew they were appointing non-ideologues, which they mainly did to get the nominees through a Dem Senate.) To go back to the global warming analogy - if you want to hire a scientist who will more or less accept the scientific consensus on global warming, you don't need to ask her if she believes in global warming, you merely have to assure yourself that she's a good scientist. Good scientists accept the scientific consensus - more accurately, accept the scientific method, which yields results that will tend to strengthen the consensus. (And when results weaken the consensus, they still drive science forward, which is what we want science to do.) A lawyer with mainstream legal opinions will inherently be far "more liberal" than the Roberts' wing, and even Kennedy. A clearly "liberal" lawyer like Kagan, will vote with the liberals on every contentious case. And when or if she doesn't, it will because she's trying to reach the correct result rather than an ideologically pure one. I have no problem with that. In fact, I'd have a problem if she allowed ideology to mold her opinions, even if her ideology were exactly the same as mine (and it probably is pretty close).
- Geoff G
May 10, 2010 at 1:18pm