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The mystery of Elena Kagan

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By Michael Gerson
Wednesday, May 12, 2010

From the supporters of Elena Kagan's nomination to the Supreme Court, we have learned that as Harvard Law School's dean she provided free bagels and coffee to students, improved the gymnasium and added a multipurpose ice rink. Her detractors have reported on liberal columns she wrote -- as a college student in the Daily Princetonian. Profiles have informed us that during Kagan's Supreme Court clerkship, Justice Thurgood Marshall dubbed her "Shorty."

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The chattering class is focused on such trivia because there is not much else to say. 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.

It is the one judgment that Kagan observers of all ideological backgrounds seem to share. Tom Goldstein, a Kagan supporter, admits, "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." Carrie Severino, a Kagan critic from the right, concludes, "She's been so careful for so long that no one seems to know exactly what she does think." Glenn Greenwald, a Kagan critic from the left, contends that "her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies."

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. We know little about her views and values -- and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court -- being eminent without being conspicuous.

But no public life is without a trace. In her story we can discern at least a few things.

First, we know that she is connected to just about everyone in the legal establishment, and most seem to like her. She was a classmate of former New York governor Eliot Spitzer and legal commentator Jeffrey Toobin, and was a protege of historian Sean Wilentz and Judge Abner Mikva. As dean of Harvard Law School, she hired conservative scholars and treated them decently. On a personal level, she is not a vicious partisan.

Second, we know from friends and colleagues that Kagan is a social liberal. Charles Fried, a prominent jurist at Harvard, says, "I do not doubt that her heart beats on the left." It could hardly be otherwise. Kagan hails from a very small ideological neighborhood -- Manhattan, Princeton University, the University of Chicago and Harvard Law School. To paraphrase President Obama, she shows a keen understanding of how the law affects the daily lives of people on the Upper West Side and in the Ivy League.

Third, we know, or at least suspect, that Kagan is favorable to strong executive authority. Her writings endorse presidential control of federal agencies on domestic issues. During her confirmation hearings for solicitor general, Kagan also seemed to approve the detention of enemy combatants without trial during a time of war.

So: Kagan is a fair-minded social liberal who favors a strong executive. Sound like anyone you know? It would seem that Obama has chosen a version of himself.

But are these vague attributes enough for the Senate to make a serious judgment about the quality of a Supreme Court nominee? Wouldn't it be helpful to know Kagan's political, legal and constitutional views? The political culture surrounding judicial nominations -- driven by attack ads and advocacy groups -- undermines this possibility. "The Framers intended the Senate to take the broadest view of its constitutional responsibility," a senator once explained, including the scrutiny of a nominee's "political, legal and constitutional views." That was Joe Biden announcing his opposition to Judge Robert Bork in 1987. Bork's vivid opinions were used by opponents to sink his nomination. Kagan's confirmation strategy, implemented over a lifetime of blandness, is likely to be more effective.

Yet Kagan's expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn't like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?

mgerson@globalengage.org


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