Kagan: Not Another Clone For The Court


It says alot about perceptions of diversity that folks think Elena Kagan would add spice to the United States Supreme Court. Why, she's not an appellate court judge. Indeed, she's never served anywhere as a judge. Wouldn't nominating her prove that the president is trying to make the Court more diverse? She's just a different brand of the same old vanilla.

Every member of the current court is a former appellate court judge. Chief Justice John Roberts thinks that's a good thing. “Today, for the first time in its history, every member of the court was a federal court of appeals judge before joining the court – a more legal perspective and less of a policy perspective," told folks at the University of Arizona law school last year.

Roberts is not naive, but he's not speaking the whole truth. Judges aren't divorced from policy decisions. When he speaks of a legal perspective, he is speaking about the policy perspective of those insulated from the day-to-day concerns of litigants. A legal perspective reflects a policy commitment to the status quo. Judges, even the most radical of them, those hellions of the Federalist Society who have tried to make necromancy into the norm of Constitutional interpretation, bring a policy perspective to their interpretation of the law.

Let's be clear about lawyers mean when they talk about policy.

A lot of trash gets talked in law school. Law professors toss the word theory around as though lingering behind the quotidian facade of the law's conflicts there were some Platonic structure to be discovered and applied in future cases. But a theory of the case is really nothing more than a way of understanding all the vaariables presented. Law professors often mistake mere coherence for a theory. How do the facts and circumstances of a particular conflict meld with the legal doctrines of decided cases? That's all that theory means.

It is often the case that decided cases will take a judge only so far in deciding a case. Sometimes the law is silent on how a case should be decided. In such instances, judges rely on what they call policy arguments. These are claims about what is and is not consonant with a good society. When a judge talks policy that term can be understood in much the same way a political philosopher might use the term theory, a prescriptive norm guiding conduct.

All judges possess such norms. Some judges just do a better job of disguising their preferences.

I oppose the nomination of Elena Kagan because as near as I can tell she has never represented anything other than an institutional client. Her sensibilities were formed in the service of power. She's now Solicitor General of the United States, representing power before the high court. She served as Dean of the Harvard Law School, embodying the power of a venerable institution to shape the mores and norms of the law's elite. She doesn't know anything about the lives most American's live. She's a tourist.

It has been almost 40 years since a nominee who had not been a judge was appointed to the Supreme Court; the last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972. It is time to break the mold and appoint from outside the rank of the law's power elite.

The Supreme Court is a country club consisting of folks with prior federal judicial service, Ivy League degress, the East Coast mores and work in government and the academy rather than private practice. That is a tiny sliver of the United States.

“As a physician, I don’t send patients to the professors at the university unless they’re the expert in the field who have actually practiced rather than just talked,” Senator Tom Coburn, Republican of Oklahoma, told Ms. Kagan, who was facing questions about appointment to an appellate court position years ago.

“I wonder how you respond to the criticism of this wonderful résumé you have but yet you have never been a justice, and you have never actually been a litigant?” Mr. Coburn asked.

Ms. Kagan replied that she would bring to the job a lifetime of legal study and strong analytic skills. She added: “I think I bring up some of the communications skills that has made me, I’m just going to say, a famously excellent teacher.”

That is, frankly, pathetic. Can't we put a real lawyer on the court just once?

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