Elena Kagan’s fresh nomination to the Supreme Court is officially in jeopardy. David Brooks thinks she is "the perfectly crafted Supreme Court nominee — almost problematically so."
I haven’t met anybody who is not an admirer. She is apparently smart, deft and friendly. She was a superb teacher. She has the ability to process many points of view and to mediate between different factions.
As with any "buy" recommendation from Larry Kudlow, that sort of description about a Democrat from Bobo means plummeting value. First, David describes Ms. Kagan as if she belonged to another generation, to another place and time than he does. Most Americans would not agree. He and Ms. Kagan, for example, are age mates. Both are Jewish kids from Manhattan, she hails from the Upper West Side, he from the lower East Side. She went to Princeton and Harvard, he to Chicago. Whereas Manhattanites could talk your ear off about the social and achievement disparities those differences imply, they wouldn’t be intelligible in Fly Over America.
The accuracy of his introduction is less important to Bobo than that it set up his punchline. The one for Ms. Kagan is that she is a technocrat, possibly a soulless one (the only kind). For Brooks, she belongs to "a generation", that
regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me… [these "Organization Kids"] were prudential rather than poetic.
Bobo’s Ivy League stereotypes are so lumpy, he must think that love means never having to say you’re sorry. Once past his weak framing, though, Bobo’s aim is sharp (demonstrating he is capable of being accurate, concise and contextual when it suits his purpose).
Ms. Kagan, says Bobo, is a smooth surfaced, apparently passionless cipher when it comes to opinions on the major issues of the day, those most likely to require a decision by the Supreme Court. He quotes Tom Goldstein of SCOTUSblog to make a point that FDL and Glenn Greenwald have been making for weeks: Ms. Kagan is
“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.”
That’s a concern echoed by the editorial writers of Mr. Brooks’ newspaper:
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.
Bobo’s critique of Ms. Kagan impliedly applies to Mr. Obama and his team. I agree that it does. It also applies, in my view, to Congress, to Wall Street and to corporate America generally. Bobo describes a problem facing America as serious as oil spills and unemployment, although he directs his lens only at Obama and Kagan.
What we have [in Elena Kagan] is a person whose career has dovetailed with the incentives presented by the [American] confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out….
[M]y 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.
Those aren’t new criticisms, but what they describe has taken firmer hold across a wider spectrum of American life. It is cause for genuine worry beyond whether Ms. Kagan would be a competent Justice on the Supreme Court, and whether her stellar ability to accommodate would upset the Court’s precarious political balance and allow its right wing to cause lasting damage to our civil liberties.
Mr. Brooks would be more credible were he to acknowledge that and the role the radical right’s partisanship and obstructionism have played in bringing about such careerism. He would have more street cred, too, were he to disdain the caginess of corporate executives and central bankers, who say, "Who could have predicted?" when asked "What went wrong?" and "What happened to our money?".
As for the talented Ms. Kagan, many at FDL would agree with the Times:
The White House undoubtedly hopes the ellipses in Ms. Kagan’s record will help her avoid a rocky confirmation hearing. That [pragmatic] expedient approach…reflects the… sentiment that the right holds the upper hand…, forcing the left to duck and cower. But in one of Ms. Kagan’s few forcefully stated positions, she wrote in 1995 that she detests “polite and restrained” confirmation hearings, calling them a “vapid and hollow charade”…. We hope the Senate follows her advice and gets Ms. Kagan to open up a little.