What Does He See in Her?

What Obama’s choice of Kagan tells us about his own judicial philosophy.

President Obama

Since the Republican attacks on Elena Kagan’s fitness to serve on the U.S. Supreme Court have thus far ranged from hypocritical to laughable to insane, the fight between the left and the way left has become far more interesting, with Salon’s Glenn Greenwald battling her supporters and everyone else trying to figure out where they stand. But the fact remains that none of us knows a thing about Kagan’s judicial philosophy. She has neither said nor written much of anything that would tell us how she thinks a judge ought to decide cases—and it’s clear that the White House likes this state of affairs, thank you very much, and plans to keep it that way.

But if we know almost nothing about Kagan’s jurisprudential approach, and with a confirmation process 100 percent guaranteed to further obscure and confuse what little we might have guessed about it, with this nomination President Obama’s own judicial philosophy is beginning to come into focus. Those of us who watched last year’s battle over a Supreme Court nominee bog down in a cartoonish fight between “umpires” and “empathy” had hoped to hear the president express a clearly defined vision for the court. It never really came. But combing through various speeches, interviews, his comments about Citizens United in the State of the Union speech, and then his nomination of Kagan, one conclusion is all but certain: Obama won’t be mucking up the courts with liberal fire-breathers any time soon.

For one thing, we know that Obama is opposed to judicial activism, no matter what the flavor. He wrote about this in   The Audacity of Hope, makingclear that liberals had become too dependent on the judicial branch to solve their political problems: “[I]n our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy,” he wrote. “Elections ultimately meant something. … Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.” In a piece last fall about Obama’s judicial philosophy, the New Yorker’s Jeffrey Toobin amplified this point and argued that the reason Obama wasn’t packing the federal courts with hard-core liberal judges was that “Obama’s jurisprudence may rest less on any legal theory or nomenclature than on a more primal political skill—the ability to keep winning elections.”

This explains Obama’s increasingly strong efforts to distance himself from the liberal lions of the ‘60s and ‘70s. Like Kagan—who, as the New York Times’ Charlie Savage notes, admired her former boss, Justice Thurgood Marshall, but “had a far more ambivalent attitude toward his jurisprudence”—Obama respects what they achieved but also takes pains to explain that their kind of jurisprudence is an anachronism today. In remarks last month he sent many liberals into a tailspin when he explained: “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically … and in the ‘60s and ‘70s, the feeling was—is that liberals were guilty of that kind of approach.”

Obama has made this point before—that the moment for Warren Court liberalism has come and blessedly gone. In a 2008 interview with the DetroitFree Press, Obama mused that “the Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.” In other words, segregation was a specific problem that required strong liberal “activists.” But we don’t have those sorts of logjams anymore.

The other prong of Obama’s judicial philosophy is the need for judicial pragmatism and “real world” experience. This connects up to his interest—which he rarely mentions anymore—in judicial empathy. In the Free Press interview he explained: “When I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology. I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.” Obama made this same point last year in explaining what he sought in a replacement for the retiring David Souter: “Someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. … It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.”

This leads us to Obama’s other strong belief: that courts still have a central role in protecting the downtrodden. When Souter retired, the president said he wanted to replace him with a justice who “recognizes that one of the roles of the courts is to protect people who don’t have a voice. That’s the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up.” He has further refined that message this year with his round of attacks on the Roberts Court for its decision in the Citizens United case. When Stevens stepped down, Obama explained that his model for a replacement justice was someone who, “like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

How to square the president’s desire for a court that protects minorities with a court that doesn’t intrude on the business of the elected branches? What to make of his sense that a forceful judicial branch was vital to the ends achieved in the Civil Rights era but not for the injustices of the present day? How do we reconcile Obama’s desire for justices who feel for the oppressed but restrain themselves from interposing themselves too deeply in the life of the country? And—most important—doesn’t he ignore the existence of a deeply ideological right wing judiciary at his peril? Is this really the time to disarm unilaterally in the judicial arms race?

Obama’s hopes and dreams for the federal courts were anticipated last fall by Richard Epstein, the interim dean at the University of Chicago Law School when Obama was teaching there. “Obama has nothing much he wants from the courts,” Epstein told Toobin. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”

That sounds less like a judicial philosophy than an end game. We may learn something more about the president’s grand unified view of the judiciary in the coming weeks. Or we may come to learn that there just isn’t one. Like liberal jurisprudence itself, the age of overarching liberal judicial philosophy may have come and gone.

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