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The nomination of Elena Kagan to the Supreme Court by President Obama has sent pundits and opinionmakers on the left and the right into a frenzy of breathless speculation and skepticism. But the collective anxiety isn’t just about whether she’ll push the court left or right – and both sides are worried she will – but over how little we actually know of her. I think this is all just a little hysterical.
True, she’s never been a judge, so we don’t know much about her positions on the issues that, as a Supreme Court justice, she’ll be forced to confront. And yes, her academic record, while impressive, also doesn’t offer a whole lot of insight into her political leanings. As solicitor general she was appointed to represent the government, so her opinions there aren’t really illuminating either.
A New York Times editorial this week titled “Searching for Elena Kagan” nervously asked, “Where, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same-sex marriage, the rights of the accused and proper application of the death penalty have raged through the courts?”
And Tom Goldstein of the SCOTUSblog put it this way: “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.”
But frankly, I don’t see what the big deal is. I mean, do we really want a judge with actual judicial experience? In 2008, we proved summarily that we don’t want a President with actual executive experience.
And Vice President Biden agrees. “It’s not a deal breaker. Thank God it isn’t,” he said, adding that we’ve appointed other justices who were never judges.
Indeed, we appear to be a country – and a generation – that is more than comfortable granting our most powerful and influential leaders some generous on-the-job training. So let’s all just give Kagan the benefit of the doubt.
After all, Harvard Law School Prof. Alan Dershowitz doesn’t seem too worried. “Her approach is likely to emerge over time from specific decisions,” he assured in a New York Times online debate. This seems fair – it’s not like there are any big issues looming in the near future. Kagan will have plenty of time after she’s appointed to hone her judicial prowess, I’m sure.
But more than that, I submit that all the paranoid hysteria over Kagan’s thin paper trail, inexperience and cloudy ideological world-view totally ignores the fact that this woman has already told us everything we need to know about the kind of Supreme Court justice she’ll be. You just have to, um, extrapolate a little.
For one, we know she’s a New York Mets fan. As a devoted member of the same tribe myself, I can tell you this is very instructive. It proves she’s an optimist and sees the good in people, even when it’s not there. A little naive, maybe, but what she’ll lack in groundedness she’ll more than make up for in spirit. Look for a real “gotta believe” ethos to permeate her decisions.
For another, she’s apparently an animal lover. While solicitor general, she prepared a brief in defense of criminalizing depictions of animal cruelty. So, obviously, we can expect great compassion in Kagan’s decisions about our pets, which will likely be numerous.
Another good piece of background? While dean at Harvard Law School, she instituted a free-morning-coffee-for-students policy, so she’s clearly no prudish teetotaler. It’s a reasonable assumption, then, that she might be a friend to the legalize marijuana crowd.
Kagan also played on the University of Chicago Law School 16-inch softball team, a gritty, merciless version of the sport that often ends in broken fingers. So she’s no foe of capital punishment – the girl knows serious pain. She might even advocate a return to the guillotine.
And finally, she apparently plays in a regular all-guys poker game. So not only is she a risktaker, Kagan also probably enjoys beer and salty snacks. This bodes well for those of us hoping that someone out there will finally rule that taxing all our favorite junk food is unconstitutional. I mean, what’s a poker game without potato chips and a Heineken?
So there you have it. I’ve given you all you need to know about Kagan. All this self-righteous posturing over her lack of experience and her murky ideology is nothing more than self-indulgent elitism run amok. She went to really good schools. She likes coffee. And dogs. She plays poker. And roots for my man David Wright. So fellow pundits, let’s quit it with all these annoying “questions” about who Elena Kagan is.
Curiosity is soooo 2004.
Opinion of Daily News, May, 12, 2010
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