Monday, May 10, 2010

The Next Supreme Court Justice

Elena Kagan wouldn’t have been my first choice for the Supreme Court. As I’ve explained before, I prefer Diane Wood from the 7th Circuit mostly because I think judicial experience counts for something. But I can’t say that I’m especially disappointed by the choice of Kagan, especially in light of the fact that she's seven years younger than Wood.  When measured against the manifold uncertainties generated by any Supreme Court nomination, the other differences between Kagan and Wood are microscopic.

I’m a little surprised that you can get to be Dean at Harvard Law having published as little as Kagan apparently has.  That seems, however, to be less a matter of her not having anything to say than of being too ambitious and self-disciplined to say it. This passage from the profile in today’s New York Times suggests that she’s been angling for a place on the Court since high school:

“At Hunter College High School in the 1970s, Ms. Kagan was a standout in a school of ultrabright girls. At least one classmate there, Natalie Bowden, remembers she had an ambitious goal: to become a Supreme Court justice.

“’That was a goal from the very beginning,’” Ms. Bowden said. ‘She did talk about it then.’”
O.K., that’s a little creepy. I can understand why Glen Greenwald calls her a “principle-free careerist” and join Matthew Yglesias in deploring the fact that we have a judicial selection process that favors candidates without a paper trail.   But neither set of considerations suggest to me that Kagan is at all likely to be a worse, or a less liberal Supreme Court justice than Wood.

I suspect that those people who fear that she will be are oblivious to changes in constitutional jurisprudence over the last twenty years. As Lawrence Lessig explains, they don’t make liberal judges like William Brennan and Thurgood Marshall anymore, largely because lawyers across the ideological spectrum have come around to the idea that the old brand of liberal judicial activism isn’t consistent with sound principles of constitutional interpretation (my emphasis):

“The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, "What would be the best answer?" to any particular question, but instead, "What is the answer of fidelity?" Or again, what is the answer that most faithfully applies the law of the different generations of our Framers -- the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I'm not sure that "liberals" on the Court have always accepted this framing. Certainly Douglas and Holmes didn't feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood's opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.”
Liberals shouldn’t be holding their breath for a liberal version of Scalia who would contest prevailing approaches to constitutional interpretation.  Owing in no small part to the efforts of the real Scalia over the last twenty years, there aren’t many in Wood's and Kagan's generation .

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