Elena Kagan and the state of Democracy
I’m not sure I ever expected to wake up to read the New York Times coverage of a new nominee to the Supreme Court and find myself in agreement.
Of course, they think she’ll be a fine justice and I think she’s a pro-abort and could do without her. I also think she looks like Ursula from “A Little Mermaid,” which is less a comment on her than it is a comment on how many Disney movies I watch with my wife (curse you, Disney movie club!). That’s not what we agree on.
What we agree on is that she is a stealth candidate and that just by itself makes us uncomfortable. The official editorial reads:
President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing.
David Brooks in a separate editorial comments that:
Yet she also is apparently prudential, deliberate and cautious. She does not seem to be one who leaps into a fray when the consequences might be unpredictable. “She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life,” John Palfrey, a Harvard law professor, told The Times. “She is very effective at playing her cards in every setting I’ve seen.”
Tom Goldstein, the publisher of the highly influential SCOTUSblog, has described Kagan as “extraordinarily — almost artistically — careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”
Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly.
There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.
So even liberals (I’ll throw Brooks in with the liberals on this one) find themselves confused by the lack of a record (except abortion-the one thing I would prefer uncertainty on).
What we have here then is a candidate who has carefully concealed her ideas and thoughts so that they cannot be evaluated by the public at large (and by the Senators and President who are in charge of giving her the seat) who is to be appointed to a seat vacated by a justice who waited until a President he liked was in power to resign. And this is in a Senate which is controlled by the same party as the President. In this kind of scenario, how on earth is the public supposed to register their dislike of a court decision?
It has almost become a magical scenario as unlikely as the plot in a romantic comedy. The Senate and the President have to line up in the same party to be able to replace the right kind of justice (i.e. one who disagree with them)-and since the justices are now waiting to pick the president they resign on, they have to unexpectedly die or otherwise be indisposed of their duties-and then the President has to figure out how to be sure of the candidate’s positions despite the deliberate attempts by that candidate to cloud up the record-suggesting that the candidate is the kind to make sure people hear what they want, and that would particularly apply to the President himself. (You can tell I went to law school with a sentence that long).
When you consider additionally that the kind of people we as Christians would want on the court are precisely the ones who are going to try to make their opinions known (i.e. those who try to evangelize), one wonders how Roe v. Wade (or any of the bad decisions on either side of the aisle) could ever be overturned in this era of stealth judicial candidacies.
Something has to be done to fix the process if the people have any chance of reclaiming a voice in the judiciary that wields so much power over their daily lives. But we will not hear this discussion in the coming months. Instead, we will only hear the politicians rail from their scripts about a living Constitution v. judicial activism while the voice of the people steadily is quieted.