Jun
20

Elena Kagan: Privilege Is Boring

Only The New York Times could publish a piece of middle-class hagiography and expect readers to gush. Me? I read this morning's piece on Supreme Court nominee Elena Kagan's family with a sense of seething discontent. Another child of privilege movin' on up, or so it seems to me. I wanted to throw away the complimentary silver spoon that came with today's edition of the paper.

Ms. Kagan's father was a progressive lawyer and graduate of the Yale Law School. Her mother was a teacher at Hunter College High School. The couple worked together, played together, raised a family together. Ms. Kagan's brothers are accomplished and charismatic in their own right. The Kagan family piece in the Times felt like an episode of Leave it to Beaver; you know the episode, the one in which an Encyclopedia Britannica salesman drops off the new volumes and the family cancels their vacation to the Jersey shore so that they can sit home and read each and every volume, starting at A.

The Senate Judiciary Committee is set to begin nomination hearings on Elena Kagan on June 28. At those hearings, Senators will probe whether she is fit to become a Justice on the United States Supreme Court. There is nothing in the record thus far assembled to suggest that she is not as intellectually capable as any of thousands of lawyers in the United States. There is every indication that she will be confirmed if for no other reason that she exudes the drab sort of conventional brilliance typical of a Mensa conference: whatever eccentricities she has are all of a predictable sort.

This morning's puff piece in the Times proved Tolstoy right: "Happy families are all alike; every unhappy family is unhappy in its own way." So Elena Kagan sprang from the granola-like innocence of Manhattan's Upper West Side. Didn't Diane Keaton once express the sensibilities of this crowd with perfect pitch when, in a film directed by Woody Allen, she said: "Lah-Dee-Dah"? Simply put: The bed of privilege from which Kagan arose each morning interests far less than what she did when she picked up her bed and walked.

I am moved far more by the life story of Clarence Thomas, a child abandoned by his father, raised amid poverty and cared for by grandparents. Much though I dislike his jurisprudence I can at least find something resonant in his biography. I suspect his life story resonates with more Americans than does that of Elena Kagan. So, too, the story of Sonya Sotomayor. Go ahead, call me a bigot, but haven't we had enough upper middle-class white people calling the shots?

Life's privilege rarely result in life-defining challenges. What is taken for granted is rarely noticed. I know this to be true from my wife's biography. Her mother was a Harvard professor, and the life my wife led shared many things in common with that of Ms. Kagan.  But what defined my wife was the shattering experience of seeing her father whisked off to federal prison for failing to take an oath of loyalty to the United States during the 1950s. She recalls still visits to a federal correctional center to see her father. She has a life-long sense of wonder about why a different vision of social justice is enough to make a man a criminal. I understand this secret sorrow of my wife's family; this sorrow is uniquely theirs.

If Elena Kagan has struggled in her life it has been a struggle devoted solely to the main chance: Hers is the master passion to succeed and bent to the exclusion of all else. She stands poised to become a Justice simply because that is what she wanted from a young and tender age. Forgive me if I find this tale of ambition-soon-to-be-consummated morally tedious.

The law is about broken dreams, passion recklessly spent, hope redeemed and the terror that comes of the irrational's confrontation with the claims of reason. These struggles are lived daily in a place Ms. Kagan has read about but rarely experienced, a courtroom. It chills me to see another brilliant automaton take a seat on the Court. Ms. Kagan is a fellow American and a fellow lawyer, but she lives in a privileged bubble. She could as easily be corporate counsel for a bank as dean of the Harvard Law School. She knows all the right and beautiful people. She is, sadly, a woman without discernible qualities other than a dogged determination to color within the lines.

Ms. Kagan will be nominated and then confirmed to sit on the Supreme Court because she fits a mold that President Obama does not have the courage to break. How long before we have a trial lawyer on the Court, Mr. President? How long?
Comments (2)
Posted on June 21, 2010 at 12:54 am by Anonymous
Elena Kagan in this case did well for the US gover...
Elena Kagan in this case did well for the US government. The plaintiff wins and the government gets the attorneys fees.

No attorneys fees for the attorney. What will happen to the next case against the Government? The lawyer won't take the case.

No wonder she was nominated and will get the job of US Supreme Court Justice
http://www.scotusblog.com/wp-content/uploads/2009/09/08-1322_pet.pdf

Question Presented as Solicitor General

Whether an "award of fees and other expenses" under
the Equal Access to Justice Act, 28 U.S.C. 2412(d),
is payable to the "prevailing party" rather than to the
prevailing party’s attorney, and therefore is subject to
an offset for a pre-existing debt owed by the prevailing
party to the United States.

Posted on June 20, 2010 at 3:20 pm by Henry Berry
This piece by Pattis reminds me of my short essay ...
This piece by Pattis reminds me of my short essay which I plan to post in various places on the Internet in the next few days. Its title is "Obama's Angels: The Primrose Path to the Presidency." It's mainly about auspicious interventions in the life of Obama at critical junctures. It's not a criticism of Obama so much as an attempt to understand his baffling manner of engagement avoidance.

One would never begrudge the good fortune of another. But it does become a political and social issue when a political leader's good fortune seems to have engendered a congenital impossibility of relating to the circumstances and concerns--and also worries and fears--of ordinary persons; which impossibility is a character flaw.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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