Also in Slate, Dahlia Lithwick explains why the inscrutable Kagan makes everyone nervous. Emily Bazelon tears down the argument that Kagan was an extremist in her policy toward military recruiters at Harvard. Jack Shafer yearns to see an openly gay Supreme Court nominee.
As solicitor general, Elena Kagan is referred to as Gen. Kagan in official settings. Republicans would prefer that you call her Professor Kagan. Soon after President Obama nominated her to replace Justice John Paul Stevens, Republicans were using her academic career to characterize her as an ivory tower elitist and insider. “Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the D.C. Beltway,” said Sen. John Cornyn, R-Texas, who sits on the Judiciary committee and also runs the GOP’s senatorial campaign committee. “These are not places where one learns ‘how ordinary people live.’ “
The political fight over a Supreme Court nominee starts like a hockey game. The puck is dropped, and each side works furiously to take control of it. Republicans were reacting to the administration’s description of Kagan as a brilliant trailblazer and consensus builder and the product of a family that valued public service. She also has a keen understanding of how the law affects the daily lives of the American people, the president and his advisers said. Anticipating the Republican line of attack, the president said Kagan’s “passion for the law is anything but academic.”
Focusing on Kagan’s connection to regular people serves two purposes. First, Obama believes such a worldview is necessary to beat back the conservative Roberts court. Second, the ordinary-people pitch is also a part of the Democratic Party’s election-year story line. The Democrats are in office to protect you, dear ordinary American, from the insurance companies, Wall Street banks, and oil companies.
The main White House talking points about Kagan are hard to refute. She is very smart. She was the first woman to serve as dean of Harvard Law School, where stories of her efforts to reach out to conservatives are well-known. She is the first woman to serve as solicitor general.
The argument that Kagan has a special understanding of ordinary people, however, is harder to make. She may very well have a fellow-feeling unmatched on the planet. It’s just not immediately obvious how a graduate of Princeton who taught law at the University of Chicago and Harvard and then became dean of Harvard Law School has the common touch.
It was easier for the president to make a similar case about Sonia Sotomayor, who had been a district attorney and had an up-from-the bootstraps story that Kagan lacks. In presenting Kagan, Obama cited her work arguing the Citizens United case. How many people even know what the Citizens United case is? It, like Kagan’s career, requires a little bit of explaining before you’re in a position to be convinced that her position on campaign finance—actually, it wasn’t her position but the government’s—shows that she understands how the law affects regular people.
The talking points the White House sent to their elite supporters also cite Kagan’s Harvard Law Review article “Presidential Administration” as proof that she understands how the law affects people’s lives. It was honored as the year’s top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice. After reading some of the article, which addresses the structure of the White House, I asked for some clarification about how that article addressed issues related to regular Americans. A White House aide suggested I Google the host of legal experts who had said so. (I did. I couldn’t find them.)
In terms of the nomination, will any of this actually matter? Republicans have been making the case that Obama doesn’t understand the lives of regular people. Now they can add that Obama’s idea of someone who does is an ivory-tower intellectual. That will be good for fundraising and some jokes. But it’s hardly disqualifying. The White House stretched the truth about Sonia Sotomayor in a more blatant way on the supposedly toxic “wise Latina” quote, and she was still confirmed.
Republicans face other problems in their critique of the Kagan story line. GOP senators opposed the very notion of evaluating candidates based on their ability to identify with the plight of ordinary Americans. Often, they have praised Chief Justice John Roberts, who said his job was merely to “call balls and strikes.” To say Kagan falls short of that standard is to accept that standard. As a political matter, they can make the case that Cornyn did. But when it comes to the hearing, it’s hard to see how they turn this argument into an effective line of questioning.
It may also be that no one is listening to the president. People may care more about all those other qualifications Kagan has than about the president’s empathy standard. Maybe people view Supreme Court justices the way they think about doctors—they want theirs to be properly credentialed and very smart.
During the various attempts to find a hidden agenda in Sotomayor’s past, White House aides could point to her actual rulings as proof that fantasies about her were constrained by reality. Kagan doesn’t have the same kind of record. That means no embarrassing opinions—but it also means she may be easier to turn into a cartoon.
Perhaps, but in today’s initial round, Republicans were frenzied and unconvincing. Kagan wasn’t a judge, said Cornyn. But that wasn’t a problem when he was praising Harriet Miers, George Bush’s nominee for the high court in 2005. Senate Republican Leader Mitch McConnell raised questions about whether Kagan could be impartial as a jurist because of her previous service in the administration. Again, it was not a point he raised about Miers. (A staffer says his concerns about this issue with Miers came some time later.) This gives off the impression—shocking, I realize—that the opposition to Kagan is frantically political.
Then there was the press release from the RNC asking, “Does Kagan Still View Constitution ‘as Originally Drafted and Conceived’ as ‘Defective’?” The question—aimed at suggesting Kagan was a judicial activist—came from a tribute Kagan made to Justice Thurgood Marshall shortly before his death. She quoted the first black justice as having said the Constitution as originally conceived and drafted was “defective.” Looking at the quote in context—or thinking about it for half a minute—it’s clear that Marshall was talking about the Constitution’s three-fifths clause, which valued slaves as less than a full human being. Even in the mayhem of the hockey face-off you can still get called for high-sticking.
Slate V: Kagan is announced as the nominee