12 May 2010


I have little to say about the nomination of Kagan, so of course I'm now going to say things about this matter.

I think I like her about as much as I could like an Obama nominee.  She seems pretty well respected by the people who have had to work with her, unlike Sotomayor.  People who know way more about the law than I do seem to think she's solid.  They're optimistic in particular that she is dispassionate enough about the law and views it mechanistically and technically enough that she will not try to shoe horn cases into whatever her desired outcome is.  She's not been a judge though, so who knows?

Speaking of not being a judge, I rather like it.  I'd prefer someone who had done something outside law schools and public sector legal work, but Obama can't even find people outside that realm for his cabinet so there's zero chance he'd find someone fitting that bill for the Court.  We're still no closer to breaking out of the Harvard/Yale law duopoly, but I didn't really expect we would be.

Kagan is speculated to be gay, right?  (Obviously I have not been reading up on this.  Wasn't there a dust-up a couple of weeks ago when some White House spokesman denied rumors she was too vociferously?  I seem to remember comparisons to the "not that there's anything wrong with that" episode of Seinfeld.)  I don't care as much about her sexual orientation as I do that her surname may be etymologically linked to the Old Turkic title translated as "King of Kings," which is to say, I don't really care about either at all.  Like I've said previously, I'm much more interested in getting some diversity of career history on the court than any other kind.

I've also seen more than a few people say she botched her arguements in Citizens United and US v Stevens by drastically over reaching, but as far as I'm concerned she did me a favor by dropping the ball on those because the government was wrong.

This is the most troubling thing about her I have read:
The Atlantic | Megan McArdle | The Judge in the Gray Flannel Suit

But I do think that David Brooks is onto something when he notes that her relentless careerism, her pitch-perfect blandness, are a little creepy. Not in themselves, but because they're a symptom of a culture that increasingly values what Brooks calls Organization Kids: the driven, hyperachieving spawn of the Ivy League meritocracy who began practicing Supreme Court nomination acceptances and CEO profile photo poses long before they took notice of the opposite sex.

What's disturbing is that this is what our nomination process now selects for: someone who appears to be in favor of nothing except self-advancement. Then we complain when the most passionate advocates for ideas are the lunatic fringe.
I think that last point is especially worth keeping in mind.

This is also related to why other "passionate advocates for ideas" are so often people like Bono. They don't have to worry about being palatable since they're already rich. On the other hand, they don't have to worry about being right either.


  1. "What's disturbing is that this is what our nomination process now selects for: someone who appears to be in favor of nothing except self-advancement."

    Yep. Another thing that concerns me is this quote from Lawrence Lessig in the NYT that's supposed to illustrate how smart and focused she is:

    “A couple of times when she was so focused on her work, she would park her car and leave it running overnight,” said Lawrence Lessig, a longtime friend who taught alongside Ms. Kagan in Chicago. “She just forgot to turn it off.”

    Sorry - repeatedly leaving your car running in the driveway overnight should argue against appointing you as a crossing guard, let alone a Supreme Court justice. It indicates you're dumb - Meatwad dumb.

  2. I must be qualified for the court, since I manage to work all night AND turn off expensive and potentially dangerous equipment when not in use.