So, its official. President Obama has named former Harvard Law Dean and now-Solicitor-General Elena Kagan as his nominee to the Supreme Court. So let’s recap. She will be one of the youngest Justices, at just 50 years old – which means she’ll potentially be on the Court a very long time and will be Obama’s legacy on the Court. She’s a woman. She is possibly gay, though apparently the White House is so concerned about her being reported to be such that they stridently refuted those “false charges.” (Their overreaction sure instills confidence in the White House internal attitude towards gay people, huh?)
And from everything I’ve read since the vacancy was announced, it seems likely that Kagan’s confirmation will be fairly interesting, though – and has a strong potential for substantive debate in a way that Sonia Sotomayor’s wasn’t. Why? It’s pretty simple. This time around, it’s more of a chess game.
1. There’s very little she’s said on-record that they can nail her to the wall with. Who’s “they”? Oh, just the usual noisy contingent of holier-than-thou politicians and pundits who tend to yell loudest. They’re the ones who dig up “wise Latina woman” remarks, by doing Talmudic readings of people’s undergraduate theses, and lecture women of colour on racism on national television without second thoughts or later regrets. It makes for great television and gets your name in the papers, so there’s really no downside for the soundbite nitpicker brigade.
But Kagan has written surprisingly little for someone who’s held the position she has. I’ve read most of it, by now. Nothing leaps to mind as of particular concern to anyone but law nerds, and you can find a very thorough but easy-to-understand overview written here, by Paul Campos at the New Republic.
2. So everyone’s gonna be forced to ask her some real questions. The Administration seems to be banking on the idea that, with so many holes in Kagan’s record, everyone will fill in the blanks with their own preferred political positions. This is a double-edged sword, though, as it means you can also fill them with the horror scenario of your choice. NOW, the National Women’s Law Center and NARAL are already making rumblings about their concern about where she stands on “their issues.” Glenn Greenwald on Salon has been caterwauling about her position on national security for quite some time. One imagines conservatives are going to re-examine the basis on which they supported her for confirmation as Solicitor General, and looking to poke holes.
The nomination’s success is going to depend, therefore, on how much people trust Obama’s recommendation.
So let’s parse out what we know about that. When Obama gave his sales speech today, he noted that Kagan was “among the nation’s foremost legal minds.” That sounds great. What it means, when it comes out of the mouth of a former law professor, though, is that Obama admires Kagan’s ability to analyze facts and then organize a narrative into such a way as it supports a particular legal position. The progressive blogger digby writes that she’s heard that Obama and Kagan have very similar worldviews, and that she assumes this means Kagan will be a master of the “split-the-baby” position, but I’m not so sure. So much depends on how much of a commitment she has to the idea of precedent, and to her philosophy of constitutional interpretation. Folks, this is someone who clerked for Thurgood Marshall, and in fact wrote a nice recollection on him when he died in 1993 praising his commitment to civil rights. And let’s face it: Marshall was no slave to precedent. The man is one of the few Justices in the history of the court who had the balls to declare the death penalty unconstitutional in all circumstances. (Ha, the RNC sent out a press release about this exactly just as I was writing this post.) Similarly, when Obama lauds Kagan’s “openness to a broad array of viewpoints,” I think it’s wrong, in the context of a legal position, to read that as meaning she’ll ultimately end up on the so-called “conservative” side of many issues. What it means is that she will address counterarguments. It doesn’t mean she will be persuaded by them.
So while everybody’s getting on the skepticism bus about Kagan in the liberal blogosphere, I’m hedging my bets – for now, or at least until Kagan actually says something I just think goes to show that Obama’s affirmations are empty. Fundamentally, I don’t agree with the philosophy that a progressive judge has to have staked out a strong so-called “liberal” position before assuming office. One of the things that has always bothered me, for example, about the way liberals talk about the Supreme Court, is the inattention to a discussion about what makes a “good judge,” as opposed to what kinds of political positions are desirable therein. (Personally, this is why I thought the “wise Latina woman” remark was a huge plus for Sotomayor, because it forced the question.)
This is going to make me sound snotty, but, although I am at all times skeptical of lawyers’ claims about the sanctity of law, I do think there’s something to be said for advocating for the quality of deliberativeness and good reasoning in a progressive judge. Put differently, it’s continually my position that given the kind of coalition-building required on the court, it’s in our interest to always be picking the smartest person, most articulate person we can. When we try to rely, instead, on a checklist of issues to evaluate a judge’s standing, it seems to me that we betray our doubts about the rightness of our positions, about their ability to prevail in minds that really do take the law seriously. Sometimes it almost seems like we’re afraid of the law, and while I think it’s important to be skeptical of the state, the one bit of indoctrination that did manage to worm its way into my head in law school is that the law’s enormous potention for getting a society to “do the right thing” can’t be denied.
So, for me, I think a good judge trains their laser sights on an issue, sees all the dimensions, and then comes up with the best solution he or she can. I do think that when s/he does that, the result is rarely bad for women, or people of colour, or disabled people, because the quality of good judging necessarily means that the judge takes their experiences into account. Maybe it’s naive of me, I admit, maybe it means that I have too much faith in people. But I have to cling to it, because I still believe in the possibility of society doing good things together. And that possibility is what keeps me going, as a progressive person.
I think this means Obama and I almost one-hundred percent agree on something. I need to go lie down.