Elana Kagan


The news that Barack Obama will nominate Elana Kagan for the Supreme Court vacancy is, it seems, now official. I’ve seen some not very plausible efforts by Kagan’s lefty critics to try to analogize her to Harriet Miers. I think the clear similarity is between Kagan and John Roberts, both the very models of a modern Supreme Court justice. The key things you want in a justice are someone who is (a) young, (b) ideologically reliable, and (c) easily confirmable. That points to someone who, like Roberts/Kagan has had a meteoric career rise due to the deliberate patronage of powerful politicians without assembling much of a public record on contentious legal issues.

You might think, as I do, that this is a dumb system. If it were up to me, Supreme Court justices would serve fixed terms and the only people eligible for a nomination would be experienced appellate judges. But we have the dumb system we have, and Kagan is, like Roberts, a perfect candidate given the system. Based on her writings, it’s hard to say what she thinks. But it’s not hard for Barack Obama to say, he knows her personally and she’s worked for him. But she’s not a personal crony of Obama’s, she’s a reliable Democratic Party veteran who worked in the Clinton counsel’s office, was nominated by Clinton for the DC Circuit (blocked by Senate Republicans), and then made Dean of Harvard Law School by Larry Summers who is himself one of the top figures in the modern-day Democratic Party.

When Roberts was put forward, you had certain BSy efforts to scrutinize her record or “temperament” and discover he was like such-and-such but it was perfectly obvious to anyone with common sense that he’d vote like an orthodox conservative Republican. Similarly, it’s perfectly obvious that Kagan will vote like a mainstream Democrat, with all the plusses and minuses that implies.

Now of course in principle it would be nice to see presidents nominate people with meaningful public records we can scrutinize, just as it would be nice for nominees to give real answers to questions at their hearings. But presidents and nominees respond to the incentives in our flawed, centuries-old system.