Leaves No Wake

Kagan Is Qualified And No Radical But an “Organization Justice” Is Not Going to Cut It

President Obama’s nomination of Elena Kagan to serve as an Associate Justice on the U.S. Supreme Court comes as no great surprise. Always a leading candidate, if not the prohibitive frontrunner, many believe the Obama Administration has been grooming her for such an opportunity since taking office.

Kagan combines two aspects necessary for successful confirmation by the Senate. First, she has a relatively thin paper trail. Second, her current position proves she can pass the confirmation process – the Senate confirmed her as Solicitor General by a vote of sixty-one to thirty-one, including seven Republican votes.

Virtually all of her former and current colleagues like and respect Kagan for her intellectual brilliance as well as her willingness to engage in dialogue. Almost everyone agrees her confirmation is a foregone conclusion. Democrats still control the Senate with fifty-nine votes and Republicans show no appetite to filibuster her.

In spite of this, senior political analyst Howard Fineman of Newsweek predicts Obama and Kagan can expect to hear Republican opposition “far nastier than the relatively polite treatment accorded Sonia Sotomayor last year.” As proof, he cites the following initial reaction from the office of Senate Minority Leader Mitch McConnell – “A third of the Senate said just last year that she wasn’t qualified to argue in front of the Court, much less sit on it.”

Edward Whelan, President of the Ethics and Public Policy Center and a former clerk to Justice Scalia, sums up the Republicans’ arguments against Kagan.

“[Kagan will] rubber-stamp [Obama’s] massive effort to transform the relationship between government and the American people and continue the liberal judicial activist project of inventing Constitutional rights that entrench the policy positions of the left,” accuses Whelan.

Charges of radical extremism are as likely to fall as flat against Kagan for Republicans as they did against Sotomayor. The far left has criticized Kagan’s selection with equal vociferousness because they feel she is too conservative, pointing to a series of positions she has taken arguing on behalf of the Obama Administration before the Court. In fairness, Eva Rodriguez of the Washington Post points out, “Kagan's work as Solicitor General should be critiqued on the quality of the argument and the integrity of the legal reasoning and not as a glimpse into her own legal psyche.”

“Just as surgical experience provides the best training for being a master surgeon, judicial experience provides the best training for being a Supreme Court Justice – at least, that is, if one were looking for Justices who are adept at interpreting the law dispassionately rather than imposing their own subjective sense of empathy,” continues Whelan.

For every critic of Kagan’s lack of judicial experience, other observers tout it as a benefit, arguing she will help to shake up a Court whose other eight Justices are all products of the federal appellate system.

History certainly suggests that lacking judicial experience is not a fatal flaw. Highly respected Justices, such as Louis Brandeis, William O. Douglas, Robert Jackson, Felix Frankfurter, and Joseph Story had no judicial backgrounds prior to their elevations. The same is true of several famous Chief Justices, including William Rehnquist, Earl Warren, Harlan Stone, Roger Taney, and even John Marshall – the man who literally defined the Court’s role as ensuring adherence to the Constitution.

Republicans bemoaning Kagan’s lack of judicial experience have nobody but themselves to blame. Late in his second term, former President Clinton nominated Kagan for the D.C. Circuit Court of Appeals. However, Republicans on the Senate Judiciary Committee stalled in order to give the pick to incoming President Bush and Kagan never got an up-or-down vote.

“[How could anyone not] look askance at kicking military recruiters off a college campus while U.S. soldiers are risking their lives abroad to defend us,” demands Whelan. Kagan did just that while Dean of the Harvard Law School, citing the military’s “Don’t Ask, Don’t Tell” policy as discriminatory.

As Clive Crook details in The Atlantic, Kagan’s “position was more moderate and above all more pragmatic than the bare facts might suggest.” Robert Clark, Kagan’s predecessor at Harvard, wrote an editorial in the Wall Street Journal defending her decision, explaining Kagan “basically followed a [university] strategy toward military recruiting that was in place [since 1979].”

Replies received by the latter piece suggest many in America’s heartland beyond fervent Tea Partiers sympathize with Republicans on this matter. One typical response in disagreement with Clark stated, “It's a crying shame the military can't simply tell Harvard to defend itself the next time American freedom is threatened and young Americans are called to fight and die to defend Harvard's arrogance. Despicable elitism.”

“It is difficult to see how Elena Kagan's career in the elite world of legal academia could be further removed from the real-life experiences of most Americans,” agrees Wheelan. Perhaps most interesting about this line of attack is that if Kagan could be more easily portrayed as empathetic to “real” Americans, conservatives would have attacked her on this basis as well.

Yet their complaints cannot be dismissed quite so easily. Beyond her gender, Kagan brings little in diversity to the Court, an observation made by both Kathleen Parker of the Washington Post as well as Jonathan Turley, Professor of Law at George Washington University, in an op-ed piece for the Los Angeles Times. Like her prospective female colleagues, Ginsberg and Sotomayor, Kagan was born and raised in a New York City neighborhood. Moreover, as with all of the other Justices, she is a product of the Ivy League.

However, perhaps the most telling critique against Kagan is that, even lacking a judicial record, she has managed to rise so far and so rapidly to widespread acclaim with almost no indication of her values, beliefs, and ideas. Next to her, Obama – also frequently accused with the sin of enigma – seems like an open book.

“Whether by ambitious design or by habit of mind,” notes a New York Times editorial, “Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view” and hopes that Senators grilling her will force Kagan to “open up a little.”

The Washington Post’s Michael Gerson ups the ante. “The most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing on the major issues of the day . . . Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark.”

David Brooks says that Kagan reminds him of a type of over-achiever that he dubs “Organization Kids.” The problem with these people, Brooks frets, is that they “often have a professional and strategic attitude toward life. They are not intellectual risk-takers . . . They are prudential rather than poetic.” Brooks finds such tendencies to be “kind of disturbing.”

When I was young Manager at my former employer, many years ago, I worked for a Director who had been with the company for many years and risen through the ranks to his current position. It had just been announced that our area was coming under the control of a new Vice-President. This man came to our company with a sterling resume at the executive level and had already headed up several different areas over a short time.

I asked my boss his opinion of our new VP. My boss was a would-be sailor, fond of sailing analogies. He smiled, shrugged, and said, “Moves fast and leaves no wake.”

In a dialogue with another pundit, Brooks conceded, “My own view of Kagan is that she’ll probably be a very good Justice, and is almost certainly the sort of open-minded pragmatist I would like to see on the Court.” My guess is that she will be a fine Justice as well but I think the Court needs more than just this.

As I posted last month, an intellect and courage capable of standing up to the Court’s conservative faction is far more important in any successor to Justice Stevens than matching or exceeding his liberal ideology. By all accounts, Kagan has the tools to do this but it remains unclear whether she will finally allow herself to act on her inner jurisprudence as much as exactly what those principles entail.

Her episode with the military at Harvard suggests she is not afraid to be controversial but even in this case, she allowed the waves from the initial splash she made to quickly flow away. The Court needs a passionate advocate, not an instigator, to counter the force of Roberts and Scalia. I fear my former boss would label Kagan “leaves no wake.”

The Court faces too many serious challenges in the coming years for this to be good enough. An “Organization Justice” is not going to cut it. Whatever sort of Justice she is going to be, Kagan needs to be more of it than she has been to date.