Toobin on Kagan

Jeffrey Toobin describes himself as a longtime friend of Elana Kagan’s and vouches for her character and intelligence still sees her as a bit of a mystery:

All of this may be interesting, but it’s largely beside the point for a Supreme Court Justice. The justices are not really managers of people, certainly not in comparison to the dean of a major law school. Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

I have two reactions to this. One is that I’m a bit surprised Toobin doesn’t know more about what his friends think. Maybe I’m just nosy, but I’d feel pretty confident in forecasting what my friends think about at least some important legal issues.

The other thing is that outside the narrow community of professional writing about the law people, I think “Clearly, she’s a Democrat” does a lot of work. On most of the issues that most people care about, court splits are pretty predictable, with the unpredictability that exists stemming from the fact that Anthony Kennedy is a bit of a throwback to time when the Republican Party was more libertarian than it is today. There are a couple of sets of issues where this isn’t the case and where swapping out Justice Stevens for “Clearly, she’s a Democrat” will plausible make a difference, but those tend to be the lower profile issues that most people don’t care so much about. “Clearly, she’s a Democrat” will look sympathetically at plausible rights claims by women, gays & lesbians, and minorities and will be deferential to congressional efforts to regulate business—people who don’t have those views don’t spend their careers lawyering for Democratic presidents.