Here David Brooks makes the argument that Elena Kagan, Obama’s latest nominee to the Supreme Court, is reminscent of our elite schools’ “Organization Kids”—bright, disciplined, articulate, and well-meaning junior careerists who do everything necessary to get ahead in their chosen professions but without any real principled passion that transcends and guides their own professional motivations. So in response to Kagan’s nomination, both sides of the political aisle have begun to dig in their heels and prepare for battle, but the fact of the matter is that Kagan has been so circumspect her entire career in communicating her views, and has so meticulously avoided genuinely substantive controversy that no one really knows much for sure about her jurisprudential principles. Even those who seem to know her well consider her studiously elusive.
On the one hand, this could be construed as promising if a lifetime of cultivating this aversion to principled asssertiveness has inoculated her against ideological overreaching. In other words, it would be a good thing if the habit of avoiding offense and controversy translates into the practice of judicial humility. She seems to have approached the few major cases she’s written on with the soul of a technician—making arguments on the basis of legal minutiae rather than philosophical worldview. This is at least some prima facie evidence that she would see her role as a justice as a high powered lawyer versus a philosopher king. This doesn’t make for inspired legal writing but I’m actually very happy to have less inspiring judges if that brings us what Peter calls a “consistent ethic of judicial restraint”.
However, the protections that come with a lifetime appointment might also have a liberating effect on a careerist—finally free from the consequences of giving offense, she can now give free rein to her political agenda. Again, her nebulousness makes it very hard to say one way or another with any certainty or even confidence. One concern of mine is that her apparent lack of interest in grand foundational issues, the kind that invite consideration within the most provocative cases, means that she has no real coherent jurisprudential view, and that in the absence of any principle or abiding check on her judgment, will have no other guidance than her own idiosyncratic political attachments.
On an unrelated note, a big WELCOME ABOARD to Carl Scott! It took my considerable powers of persuasion, or my special brand of annoying persistance, to convince him to join us.
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