What Will Go On That Blank Slate?
The one that is Elena Kagan, that is? Peggy Noonan writes in the WSJ that the senators won't ask tough questions, just speechify, and that the proposed Supreme won't have much to say -- not that she has up till now:
We know little of the inner workings of Ms. Kagan's mind, her views and opinions, beliefs and stands. The blank-slate problem is the post-Robert Bork problem. The Senate Judiciary Committee in 1987 took everything Judge Bork had ever said or written, ripped it from context, wove it into a rope, and flung it across his shoulders like a hangman's noose. Ambitious young lawyers watched and rethought their old assumption that it would help them in their rise to be interesting and quotable. In fact, they'd have to be bland and indecipherable. Court nominees are mysteries now.Which raises a question: After 30 years of grimly enforced discretion, are you a mystery to yourself? If you spend a lifetime being a leftist or rightist thinker but censoring yourself and acting out, day by day, a bland and judicious pondering of all sides, will you, when you get your heart's desire and reach the high court, rip off your suit like Superman in the phone booth and fully reveal who you are? Or, having played the part of the bland, vague centrist for so long, will you find that you have actually become a bland, vague centrist? One always wonders this with nominees now.
There should be and needs to be a vigorous, rigorous grilling of Ms. Kagan. But one fears we'll all listen and come away not knowing where she stands and what she thinks. Instead, you know what we're going to hear: opaque, convoluted, impossible-to-understand statements. "I appreciate your raising that issue, Senator. The Blewblew v. Blahblah decision was ultimately reflective, as you suggest, of jurisprudential assumptions going back at least far as Dewdew v. Dahdah as interpreted by Justice Jackson, who did not nullify, and reinterpreted by Justice Brandeis, who did, as you note." Viewers will try to listen, give up, and wind up thinking, "I like her hair." Everyone in public life says, "I can't believe they only care about my hair," but they're lying. That's all they want you to think about.
David Brooks has more here, in The New York Times, on Kagan, the careerist cipher:
One scans her public speeches looking for a strong opinion, and one comes up empty. In 2005, for example, she delivered a lecture on women and the legal profession. If ever there was a hot-button issue, it's the mommy wars, the tension between professional success and family pressures. Kagan deftly summarized some of the research showing that while women do well in law school, they are not as likely to rise to senior positions at major firms. But she didn't exactly take a stand. "What I hope to do is start a conversation," she said.Her recommendations were soporific: "Closer study of the differences across practice settings, linked to the experiences of women in those settings, could help us to improve workplaces throughout the profession." Furthermore, "Charting a course for the profession in these times will require sustained cooperation between practitioners with the experience and wisdom to identify problems and implement solutions, and academic researchers with the ability to generate the systematic and unbiased research on which these solutions must be based."
Kagan's sole display of passion came during her defense of her decision to reinstate a policy that banned the military from using Harvard Law School's main career office for recruiting. But even here, she argues that her position was not the product of any broad opinions. She was upholding the antidiscrimination regulations of Harvard University. She told the Senate in written answers to questions during her confirmation hearings for solicitor general, "The position I took does not entail a view on the exclusion of R.O.T.C. from college campuses, and I never expressed a position on the exclusion of R.O.T.C. from Harvard."
What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.







Of course this person will be confirmed.
The country elected a President they didn't know at all. Even the media asked, the day of the election, who this guy was, even as they carried his water for months.
Radwaste at May 14, 2010 6:18 AM
I think that it's safe to assume that she's reliably on the left. She's probably Obama's idea of an 'empathetic' jurist.
If the republicans were smart, they'd avoid a lot of hot button questions and go for those that require a knowledge of the role and workings of the court, modes of judicial analysis, and theories of interpretation. She can't easily weasel out of these, and they'd demonstrate her competency.
jack macey at May 14, 2010 7:55 AM
Jack, I think the problem with that is that kind of discussion would be over the heads of most non-lawyers, and so it would have little impact on public opinion one way or the other. In fact, the pro-Kagan people could turn it to their advantage by portraying Kagen as being browbeaten by the committee.
Kagan was clearly picked to be a stealth candidate. The thing is, we know from the Court's history that such candidates frequently go off in unexpected directions once they have the power of the Court in their hands. I see some indications that Kagan could actually morph into an authoritarian social conservative -- which Obama might not mind, but it would create huge headaches for subsequent Presidents of either party.
Cousin Dave at May 14, 2010 8:14 AM
The problem is not what these people believe, it is the power the Court has usurped.
Read the Constitution, and you will not find anything allowing the Court to decide that it is OK for a government to take your property and give it to someone else who will pay more in taxes. A Congress with a spine would fix some of this judicial overreach, but I'll see flying unicorns first.
Purists will be aghast that I raise the issue, because it's been that way for hundreds of years. I'll respond that we've abolished slavery.
MarkD at May 14, 2010 9:30 AM
I believe the reason no one knows where she stands on anything is because she doesn't actually have a stance on anything. Which, I think, will make her a great puppet for the current administration. And therefore, I think she will be confirmed. And, to Radwastes point, look what happened in the last election...
I actually like that suggestion Jack. But alas, that would be asking them to actually make sure she is qualified for the job and you know that just isn't gonna happen. Because she doesn't have to be. All she has to do is say the right thing, and be agreeable.
Sabrina at May 14, 2010 10:21 AM
I don't understand the big flap over trying to get only "centrist" candidates for the court. Clarence Thomas and John Roberts have never made any pretense of being anything but far-right jurists (corporations have the same rights as human beings? Uh-huh). As a matter of fact, I've repeatedly offered to save the government a good deal of money by doing Thomas' job -- I can predict with 100% accuracy how he'll vote on any case, based on a one-paragraph summary of the issue(s) at stake, and I can do it in my spare time, so no salary would be required.
So, I don't understand why Obama didn't just out-and-out pick a flaming, left-wing liberal and then just plant him/her in the court. Hey, it worked for the Bushes.
Steve H at May 17, 2010 10:16 AM
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