May
09

Kagan Goes Kerplunk: Brilliance Isn't Enough

There is no joy in Mudville in the wee hours of this day of mourning. It's now all but official. The die is cast. Hours from now President Barack Obama, the most improbable of presidents, will announce, once and for all, that in the dark night of the soul, politics simply is what it is, a back-slapping round of compromises played out and arranged in a funeral home anteroom. As a new day dawns, prepare to meet the newest nominee to the United States Supreme Court, a woman without qualities other than a predictable and tedious sort of brilliance, Elena Kagan.

The audacity of hope just became the predictability of compromise.

Oh, some will chatter about how this nominee is all about diversity, twittering, just beneath the radar, about her suspected libidinal compass. Could this be the first lesbian on the court? More likely the first justice to have so sublimated all that is to human at ambition's altar as to become a sterile caricature. It's as though we think we need Senators who campaign on the promise of dalliances with pages.

Only in Washington, and among elites well-heeled and secure enough in their income, fortunes and sense of entitlement would sexual preference count as a meaningful barometer of diversity. While Rome burns, do the rest of us really care what sort of fiddling the emperor does?

Elena Kagan leaves me as cold as can of processed salmon. Princeton, Oxford, Harvard, a clerkship on the Supreme Court, associate at a megafirm, law professor, dean of Harvard Law School, Solicitor General of the United States. Oh, and did I forget that she writes a mean law review article? Kagan seems to have perfected the art of having it all while having nothing at all.
Brilliance is, after all, a common enough quality among the power elite.

I've said it before and I will say it again. We need a trial lawyer on the Supreme Court, not a judicial tourist. As near as I can tell, Ms. Kagan has never set foot in a courtroom representing a person in need. All she knows about the courts' capacity to change a life is what she has read. She's a surgeon who can only describe a scapel. In a nation chock full of lawyers who actually know what the courts do by experience, she is a rank outsider. I'd need to send an associate with her to handle a misdemeanor, just to make sure she didn't give the client's rights away.

President Obama ought to know better than to offer yet another in a series brilliant drones to the Senate for its consideration. Don't we have enough law review veterans on the court? Why graduate high enough in your class, and you might never have to sit with the hoi polloi and listen to their sorrows. Play your cards just right, and, wham, bam, thank you Sam, you just might get a seat on the Supremes. Oh, Barack. How quickly you have fallen short of the glory of your rhetoric.

Kagan once referred to the confirmation process as insipid and meaningless. I suspect appearing on just such a soulless stage has been the amibition of her professional life. Undoutebdly, she'll soon demonstrate the art of evasion in response to questions put to her by the Senate. Saying nothing is the judicial nominee's stock in trade.

Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.

There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice. Kagan ought not to be considered pathbreaking just because her nomination to the D.C. Circuit by President Clinton in 1999 failed.

But, I digress. I am bitter because when I go to court this afternoon to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.

I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I go was another harmless error of a choice.


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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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