I find this version of the argument in favor of Elena Kagan‘s confirmation that basically amounts to, “all these prominent Democrats know her, and know her to be a liberal,” deeply unpersuasive. But having thought about it, it’s not really because I doubt that Kagan is a liberal. At this point, between her lionization of Thurgood Marshall, her work for Democrats over the years, her opposition to discrimination in the military, and even her rare public opposition to Lindsey Graham‘s attempt to strip federal courts of jurisdiction to hear detainee cases suggest that she would be a reliable liberal vote on the court. Conservatives like “libertarian” Glenn Reynolds, who lauds Kagan’s supposed “Cheneyesque” views of executive power, and Rudy Giuliani, who chuckles about lefty opposition to those alleged views, only do so because they’re part of the segment of the Republican Party whose opinions cannot be changed by the presence of actual facts to the contrary.
Paul Campos‘ argument against Kagan remains the most persuasive, but I confess that it resonates with me partly because there is absolutely no way that Sonia Sotomayor could have gotten to the court with Kagan’s resume. Because her paper trail is so thin, the most obvious professional skill of Kagan’s that emerges is the ability to flatter elites with diverging political views, who then flatter themselves by imagining the community they inhabit as being diverse. The National Journal’s Stuart Taylor, a man as tribal as Pat Buchanan but far more genteel, instantly recognized
Kagan as a member of his elite tribe, someone willing to smack down–I
kid you not, this is his term–those pesky “diversitycrats”. The truth is that a conservative Harvard professor who thought taxes were too high under Bill Clinton and a liberal Harvard professor who would like a single payer health plan have far more in common with each other than with the guy who repairs their air conditioners, or for that matter, the Harvard professor whose father repaired air conditioners. Despite the charade, Taylor knows this to be true–you can tell by his taking offense at Sotomayor’s efforts to make Princeton more diverse.
So the portrait of Kagan that emerges is not necessarily one of legal brilliance, but that of a person who excels at maneuvering within these cloistered elite settings–whether we’re talking about Congress, the Clinton administration, or the Law School at Harvard University. Sotomayor graduated summa cum laude from Princeton, excelled at Yale, was a district attorney, a judge, and worked on issues as diverse as civil rights and campaign finance. Despite all this, she was attacked as unqualified. Kagan, her lack of a record nonwithstanding, hasn’t drawn nearly as much vitriol about her lack of experience for the job. Sotomayor would not have made it to the shortlist with Kagan’s qualifications, and Obama would have been destroyed both by Republicans and the press for nominating her.
Basically what bugs me about the Kagan nomination is that this nomination process is a version of what you see on a daily basis–she’s someone whose rise isn’t necessarily due to brilliance or “merit” as much as it is her access to and ability to exploit large amounts of social capitol. And that’s probably true of most people so maybe I’m just being petty. I’m not saying Kagan isn’t smart, people with much more legal expertise than I have concluded that she’s brilliant. I’m saying that no one would have ever taken the idea that Sotomayor was brilliant on faith, and that’s basically what all her prominent liberal buddies in high places are asking Americans to do.
— A. Serwer
