The New Republic's strong endorsement of Elena Kagan is a rather odd piece of work. To borrow an analogy from Bill James, the general thrust of the argument is sort of like the Chicago Bulls scrub who combined his "contribution" with Michael Jordan's 54 points and noted that North Carolina alumni had combined for 55. Similarly, TNR's strategy is to link Kagan with the liberal icon Louis Brandeis, who once held the seat Kagan has been nominated for.
On its face, the analogy between Brandeis (a rather prickly, solitary intellectual with a voluminous record of published liberal views preceding his Supreme Court nomination) and Kagan (a go-along-to-get-along networker with a remarkably consistent record of failing to express controversial views on any subject) is strikingly inapt. So what is the basis for the comparison? Kagan is said to share Brandeis' belief in "judicial restraint." But like its flip side, "judicial activism," at this level of abstraction it's a vacuous term. Modern Supreme Court justices all vote to strike down legislation at a similar rate, and there's no reason to believe Kagan will be any different. It's true that Kagan will almost certainly vote to uphold the heath-care bill and the other centerpieces of Obama's agenda, but this is more a minimum qualification for a Democratic appointee than a sterling recommendation. And the potential that she may show greater deference to the state on civil liberties issues is a bug, not a feature.
When one gets more specific, even the editors have to admit that their analogy makes little sense:
It's true that Kagan is not an heir to Brandeis in every respect. Although she likely shares his commitment to liberal judicial restraint, she lacks his crusading devotion to economic populism and opposition to “the curse of bigness” in corporate life and in the public sector. If there is an ideological perspective currently unrepresented on the Court, it's Brandeis's economic populism: Not a single justice, liberal or conservative, comes from the Brandeis tradition on this subject. The lack of a consistent voice for economic justice is obvious in the pro-corporate tilt of the Court's opinions.
This gives away the show. The only case for Kagan is to defend the nomination of yet another pro-business, Chamber of Commerce-friendly centrist to the Court. TNR would prefer otherwise, but if so, then why is Kagan a good choice?
Which brings us to the biggest problem with the endorsement: Its evasion of the crucial question of what makes Kagan better than other perspective nominees. Why should the opportunity to select a justice who may add some contrast to a Court composed of Rockefeller Republicans and movement conservatives being squandered on a bland, probably centrist nominee who could be confirmed in a much less favorable political context? Some vague hand-waving about "enforcers of ideological purity on both the right and the left" aside, the editorial doesn't offer an answer -- most likely because there isn't a good one.
--Scott Lemieux
