Wednesday, May 12, 2010

The Kagan Nomination

Since President Obama nominated Elena Kagan to the Supreme Court on Monday, the pundocracy has been spewing out all kinds of commentary about her qualifications (or lack thereof),  the paucity of a "paper trail" (she didn't publish much as a legal scholar, and most of what she did publish was narrowly analytical, rather than intellectually trailblazing), her supposed "timidity" in eschewing public statements of her political or constitutional views, her status as an Ivy League-trained, East Coast insider, working strategically to position herself within corridors of power, and (most sadly) her sexuality (or lack thereof). I have not bothered to link to the myriad sources of all this commentary. Just pick any news or blog site more or less at random.

I will, however, link to one commentary that really confounded me. In yesterday's New York Times, columnist David Brooks (here) laments that Kagan's law review articles were limited to analytical and procedural issues, that she has not sought to influence public debate on the law, and that she appears to be more cautiously strategic than creative. Personally, I do not consider it a drawback for a judicial nominee to possess the qualities of analytical sharpness, parsimony, and carefulness in public utterance. However, the clear inference from Brooks's column is that, throughout her entire career, Kagan has been positioning herself for a seat on the high court. That strikes me as a bit far-fetched, given the vanishingly small probability of a Supreme Court appointment for any individual, no matter how gifted and politically well-connected. Even if Kagan's reticence dovetails nicely with a dysfunctional Senate confirmation process, as Brooks observes, the supposition that Kagan is nothing more than a strategic careerist strikes me as implausible, especially given her previous experience as an unsuccessful nominee to the D.C. Circuit under President Reagan (the Republican-controlled Senate never brought her up for a vote).

Finally, I am surprised to learn that David Brooks considers creativity and a willingness to stake out controversial positions as values that judges should possess. Perhaps he's right, but I can't imagine many of his fellow conservatives would agree. Nevertheless, we shouldn't underestimate the value of thoughtful, careful analysis either. I don't know what Elena Kagan's constitutional philosophy is, what positions she would take on issues that are important to me, or whether her positions on those issues would match my own. But I actually find her careful, analytical, and conciliatory approach to issues comforting.

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