Tuesday, May 11, 2010

Is Elena Kagan Too Much Like an "Organization Kid"?

Yesterday, President Obama nominated Elena Kagan to fill John Paul Stevens's Supreme Court seat.

David Brooks has a fairly searing critique of Kagan in this morning's Times ("What it Takes," here). Brooks claims that she has spent her entire career avoiding taking any risks or staking out strong positions.

Either Brooks or another commentator has written a similar criticism of Obama (pre-Presidency): that he spent his adult life strategically "above the fray," even when he was in the Illinois legislature.

It's harder to continue making the argument that Obama is unwilling to take a position, now that he hammered the health care reform legislation through Congress. So -- if she is following the Obama model -- perhaps Kagan has spent her life-till-now in an effort to reach a position of immense power (Supreme Court Justice) from which she will take risks?

Here's an excerpt from the Brooks piece:

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." ...

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

John Dickerson, meanwhile, is confused (here) by the Administration's claim that Kagan understands the common folk. Dickerson predicts -- rightly I think -- that she is going to be portrayed as an academic (even if not a juridical) elitist who has lived her life overly removed from the realities that most people confront:
It was easier for the president to make a similar case about Sonia Sotomayor, who had been a district attorney and had an up-from-the bootstraps story that Kagan lacks. In presenting Kagan, Obama cited her work arguing the Citizens United case. How many people even know what the Citizens United case is? It, like Kagan's career, requires a little bit of explaining before you're in a position to be convinced that her position on campaign finance—actually, it wasn't her position but the government's—shows that she understands how the law affects regular people.

The talking points the White House sent to their elite supporters also cite Kagan's Harvard Law Review article "Presidential Administration" as proof that she understands how the law affects people's lives. It was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice. After reading some of the article, which addresses the structure of the White House, I asked for some clarification about how that article addressed issues related to regular Americans. A White House aide suggested I Google the host of legal experts who had said so. (I did. I couldn't find them.)

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