Kagan: The Quiet Careerist

Barack Obama's Supreme Court nominee Elena Kagan represents one of the worst features of liberal academia, the conscious effort to approach profound injustice with dispassionate objectivity. Scholars who either refuse, or are incapable of, expressing genuine moral outrage towards the more nefarious aspects of our political establishment (like illegal NSA wiretapping and the ever-expanding, constitution-shredding executive branch) give the illusion of normalcy to what is in fact a radical departure from legal tradition. Elena Kagan, this shielded scholar, ought to have made her viewpoint clear and vociferously attacked the executive abuses of the past eight years, but she was almost entirely silent on all the important legal issues of the day.

It has become clear that Kagan is far more concerned with her career objectives than the world of ideas. Kagan—who appeared in her high school yearbook wearing judge’s robe and holding a gavel—has so carefully shielded herself that even people around her simply haven’t a clue what, if any, strong personal convictions she might have. Tom Goldstein of SCOTUSblog described her reserved character: “extraordinarily – almost artistically – careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.” The New York Times editorial page has even asked Kagan to “open up,” for she has “spent decades carefully husbanding her thoughts and shielding her philosophy from view.”

You wouldn’t marry somebody after five cold and apprehensive dates, so why would you want to select a justice based on the five narrowly technical and non-ideological scholarly papers she has written? In fact, it’s even easier to get out of a marriage than it is to get somebody off the Supreme Court! The process of selecting Supreme Court judges is very much to blame for the shielded lives that prospective judges lead. David Brooks has argued the politics of the selection process “gives a brilliant and gifted person a strong incentive to be reticent and cagey.” What a strange system we have crafted for filling this lifetime position, a system that demands we trust the President’s choice simply by virtue of it being the President’s choice. We simply need to know more, or we could, as Glenn Greenwald argues, very well end up moving the court to the right.

Some critics have found this uncertainty simply unacceptable, and the confirmation process “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." Critics like Elena Kagan circa fifteen years ago. Unfortunately, Kagan has vowed to renege that critique and be more reserved when she is questioned by the Senate. This is a very disturbing trend in the selection of Supreme Court justices, a trend that weakens the ability of the Senate and the public to pressure the President on this decision of profound importance. People in positions of authority undoubtedly desire to manage and manipulate information to service their ends. If we have learned anything over the past decade it is that the only way the public can protect itself from these abuses of executive authority is to demand full disclosure on matters of such importance. Others, like Larry Lessing, friend and supporter of Elena Kagan, have lauded her secrecy, “she has spent her time, not blogging, not twittering, not trying to be out there in the forefront of every single legal issue, just doing her job, and doing it extremely well.” I think we’d all be a little bit more comfortable if she had a Twitter account.