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.

Comments: (5)

  • At approximately 7:40 this morning, I got thru to ...
    At approximately 7:40 this morning, I got thru to Washington Journal, C-Span, under 'Bill from Cape Cod, Massachusetts' on the Independents Line. I opposed the nomination of Elena Kagan on air and directed the viewers to the blogsite of Mr. Norm Pattis, a CT defense attorney who writes this morning, "Kagan goes Kerplunk: Brilliance is not Enought." I said she has no real-world trial experience in the courtrooms of America. I spelled it out, N-O-R-M-P-A-T-T-I-S.
    This program is usually rebroadcast throughout the day. Try to catch, if you can.
    Posted on May 10, 2010 at 1:01 am by William Doriss
  • Thanks, Bill!
    Thanks, Bill!
    Posted on May 10, 2010 at 1:01 am by Norm Pattis
  • I agree a trial lawyer on the high court would be ...
    I agree a trial lawyer on the high court would be nice. Has this woman even been a judge? I get your points. Academic law is so far away from the law we practice in court, that the light from it would take two years to reach us.
    Posted on May 10, 2010 at 3:03 am by Marcus L. Schantz
  • This just in from the N.Y. Times this afternoon:
    This just in from the N.Y. Times this afternoon:
    She said that the court serves the country “by upholding the rule of law and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”
    You lie, Ms. Kagan!?! Which Handler from the White House wrote that line for you? Are you a pappawa? Come on, we know you have handlers to guide you thru that pesky little confirmation ritual-hazing process which you think is so ridiculous/unnnecessary, ReHearsing your responses to the most likely of questions. Even picking your wardrobe for you, the way they did for the previous prima-donna nominee. Ha!
    Kagan's career is characterized by sticking to the most elitist schools in the country, saying the right things to the right people, and--last but not least--smiling a lot,...even more so than Sonia SootyMayor, another statist, establishmentarian of the highest order emanating from the netherlands of New York City. What a concept?!?
    Are we to seriously accept one FemiNazi justice after another for the High Court? Just say NO to NoBama. I'm sorry Mr. NoBama, you have disappointed those of us on both the Right and the Left in your faint-hearted attempt to place a milquetoast, middle-of-the-road, fence-sitting lady with no real-life courtroom experience and a scant 'paper-trail' to the highest court in the land.
    Kagan does not rhyme with Reagan. What would the Gipper say, the Great Communicator? "There you go again, Mr. O'Bomba!?!" Personally, I have no use for the Supreme Court and sincerely believe it is supremely irrelevant in today's world. In most of our humanly endeavors, we try to achieve efficiency and increased production. But no so, the Supreme Court. In the last fifteen years or so, the court has reduced the number of cases heard by approximately half.
    They do not even 'hear' one percent of the cases docketed annually. They work less, and get paid more. How do I get one of those JOBS? In Amerika, you have the right to 'petition the Sovereign', but there is a catch--a very BIG CATCH-22--they do NOT have to hear you.
    My own opinion is that every single case properly docketed with the Supreme Court should be given a 'hearing' and a 'decision'. As an Amerikan citizen, I deserve nothing less, nothing less than the justice promised me by the Constitution and the Founding Fathers. (Put that in your smoke and pipe it, Mr. ScAlito.)
    Having said all of the above, my favorite S.C. justice is Ruth Bader. She, above all, asks the most penetrating questions from the bench. I do not believe this candidate or Justice Sonia will measure up to Ruth Bader.
    My calculus tells me we need 99 Supreme Court justices to hear the 21st C. caseload, to be hired at one percent of the salaries now offered. I, for one, will volunteer. That way we can kill a lot of birds with fewer stones, and truly say to the world: "See, we really do have the best judicial system in the world." Ha!
    Sen. Jeff Sessions, my HERO, you will be hearing from me.
    Posted on May 10, 2010 at 11:15 am by William Doriss
  • I'm kind of surprised you're surprised... she has ...
    I'm kind of surprised you're surprised... she has as much trial experience as Obama had governing experience when he took office.
    Posted on May 18, 2010 at 1:18 am by Anonymous

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