clouds
The American political scene today has as much substance as these clouds. (photo: Creativity+ Timothy K Hamilton on Flickr)

Although the occasional cipher has been thrust into the highest levels of the Washington political scene in the past (see, for example, Dan Quayle) it seems that the process of driving substance out of the picture has accelerated since John McCain’s inexplicable choice of Sarah Palin to be his running mate. Now that President Obama’s choice for the Supreme Court has been revealed to be Elena Kagan, whose primary accomplishment to date has been to leave no record, instead of the clearly superior and substantial candidate Diane Wood, it seems that substance is in retreat in a way never seen before.

In January of 2009, Obama nominated Dawn Johnsen to head the Office of Legal Counsel in the Justice Department. This was seen as a tremendous move, as Johnsen had the experience, the expertise and an apparent eagerness to take on the job of unraveling a series of horrible legal opinions that had been issued to support the torture program put into place during the Bush administration. Sadly, though, even with 60 votes for Johnsen clearly within reach for an extended time, Obama chose not to fight for Johnsen’s confirmation. As a result, once it became clear that another Supreme Court nomination was going to be necessary, Johnsen withdrew from consideration, knowing that Obama had abandoned her.

Obama’s abandonment of Johnsen echoed his behavior on the FISA issue during the primaries. After initially staking out a position that painted him as the Constitutional law professor fighting for the rule of law against government lawbreaking, he then reversed himself and voted for a terribly flawed bill that extended government abuses. In nominating, and then abandoning, Johnsen, Obama has again tried to don the mantle of fighting for the law, only to side with government immunity to the law in the end. Obama has yet to nominate a replacement for Johnsen, so OLC is forced to continue its second year with an Acting Head.

Consider also the tragic loss of the Lion of the Senate. Teddy Kennedy championed liberal causes over an extended and hard-fought career, only to be replaced by a candidate whose primary merits appear to have been a pickup truck and a well-placed staple. And now, we have the nomination of another cipher to fill the slot of liberal lion Justice John Paul Stevens. Kagan’s nomination sends a clear message to the youth of today who aspire to high office: Don’t take a stand or leave a record, and you too might someday reach the highest levels of government. The converse is also true, as embodied by Johnsen: If you take a stand, you will be abandoned. See this post by Jon Walker for further discussion of how important is for our legislators never to take a public position on the issues.

As a postscript, I should note that in Kagan’s case, it is her record which is the cipher, rather than her intellect, as seen for Quayle and Palin. It’s hard to imagine how an intellectual cipher could become Dean of Harvard Law, but it is surprising nonetheless that one could do so while leaving such a remarkably empty record on the issues.