May 12, 2010--The Un-Bork

For most presidents in the modern era their favorite thing is the chance to appoint members of the Supreme Court. Even if they are only able to serve two terms, eight years, members of the court they appoint for a lifetime may wind up remaining there for three or four decades and thus represent a living legacy for the president who appoints them.

And let no one fool you--back to George Washington, all presidents have attempted to appoint justices who will help carry out their agenda. In fact, when the Supreme Court of the time began to overturn much of Franklin Roosevelt's New Deal legalization he attempted to get Congress to pass a judicial reform act that would have allowed him to increase the number of justices serving on the court. He was criticized at the time for wanting to "pack" it, and it failed to be enacted.

Further, let no one claim that justices who are "strict constructionists" (ones who will allegedly follow the Constitution literally and thus not seek to "legislate from the bench") are any different than so-called "activist" justices. In both instances, be they conservatives or liberals, by their decisions and written opinions they all want to profoundly influence the direction of the law, politics, and culture of the nation.

No better example from the recent past was the 2000 Supreme Court decision in Gore v. Bush. The conservative majority, overlooking the right of Florida to determine who got the most votes--states rights presumably being a favorite conservative principal--somehow managed to come up with a pseudo-constitutional rationale to take the vote count out of the hands of the state of Florida and found a way to declare George W. Bush the 43rd President of the United States. ironically, no president in the history of our republic has ever been selected so extra-constitutionally.

So take all of this into account as you think about Barack Obama's most recent nominee--since Elena Kagan is only 50. Obama, as his predecessors, wants to have his finger prints all over decisions that may stretch out until the middle of the 21st century. And this is how it should be. Elections, after all, have consequences.

Also, recall, that try as they may presidents are frequently fooled by the decisions that "their" justices come to. John Kennedy, for example, named Byron (Whizzer) White to the court, assuming he would take "liberal" positions, but as Mr. Justice White he soon became a conservative stalwart. Dwight Eisenhower, as another example, appointed Earl Warren to be Chief Justice, convinced he would be a strict constructionist, but he turned out to be as liberal as they come. So much so that the ultra-reactionary John Birch Society devoted most of its energy attempting to get him impeached.

So, when thinking about Solicitor General Kagan, don't be so sure she will turn out to be the person Obama thinks he is appointing.

And on that subject, what does Obama or any of us really know about her? In the tradition of judges and legal scholars and law school deans who dream about being nominated to the Court, Kagan--and it appears she was doing that since literally childhood-- like all of her recent predecessors, is largely an unknown quantity. Intentionally so.

In his column if yesterday's New York Times (linked below), David Brooks got it about right.

Elena Kagan has spent a professional lifetime avoiding saying or writing anything either controversial or meaningful for fear that when the great day came, when she would be nominated, there would be no paper trail whatsoever for members of the Senate to scrutinize or use to vote against her confirmation.

Though I rarely agree with Brooks, he is spot on when he writes that even people who think they know her well report that they have never had a conversation with her, including private ones, in which "she expressed a personal conviction on a question of constitutional law."

And for someone who had been a law professor at the University of Chicago and then dean of the Law School at Harvard, it appears she has written just five articles, all insignificant and completely innocuous. It is a wonder that in the publish-or-perish world of academe that she was ever able to secure a university appointment.

This canny approach by Kagan is the result of what happened to Robert Bork back in 1987 when Ronald Regan nominated him. Bork, also a Solicitor General, had published so much that Senator Teddy Kennedy, a scant 45 minutes after he was named, raced to the Senate floor and raged that if Bork were confirmed it would mean the end of civil and women's rights. Women, he asserted, would have to return to back-alley abortions and Blacks would be resegregated.

Kennedy's and others attacks on Bork were so effective, if over-the-top, that Bork was not only not confirmed but his name was transposed into a verb--to "be borked" was forever defined as "a concerted attack on someone's character, background and philosophy."

The ambitious Kagan, like her recent predecessors, took the Bork experience to heart and managed to build a remarkable career without ever saying anything worthwhile or standing for something significant. Just what we don't need in Supreme Court justices.

So what was Obama to do when looking for someone who would likely help advance his agenda?

I assume in his private conversations with her, though it is considered bad etiquette to question potential nominees too specifically--for example, one is not supposed to ask them if they support Roe v. Wade--that Obama and she spoke in code and exchanged lots of winks and nods.

He might have asked her about the constitutional right to privacy (the right on which Roe was decided), hoping she might smile in just the right way to convince him that when the Roberts-Scalia-Thomas-Alito court gets its hands on Roe she will be a strong supporter of a woman's right to choose. Or when he asked about executive authority (code for presidential power) she shrugged her shoulders in a way to indicate that she will support a strong presidency (his) so that he, as his 20th and 21st century predecessors, can carry on as unfettered by the courts as possible.

It is sad that things have gotten to be so blindly partisan that we wind up with publicly empty vessels such as a Roberts and a Kagan and not a Marshall or a Brandeis.