Some thoughts on the impending nomination.
The wildly contrasting impressions about Kagan can be easily reconciled if one assumes that people who know Kagan are simply projecting their own political inclinations and commitments onto her. This is an extremely common phenomenon: if you like someone and believe she is fundamentally a good and fair-minded person, while at the same time knowing nothing about her own politics, it’s the most natural thing in the world to attribute your politics (for after all, are you not eminently “fair-minded” on all sorts of difficult political questions?) to her. Thus naïve progressives assume a Justice Kagan would be lion of the left, despite the profound affection she elicits among establishment and conservative figures (and the checks she’s cashed while consulting for Goldman Sachs), while conservatives assume she will be a “good” liberal” (which is to say not very liberal at all).
In this sense, Kagan is a much more extreme version of her former University of Chicago colleague, Barack Obama. As an elected politician, Obama has not of course been able to go to anything like Kagan’s lengths in avoiding public positions on controversial issues. Still, a year and a half into the Obama administration, progressives continue getting a rude surprise every time Obama does something profoundly objectionable to the left wing of the Democratic party – even though evidence of Obama’s supposedly progressive political agenda has always tended to consist of little more than wishful thinking.
In some ways, nominating Kagan to the Supreme Court would be the ultimate expression of this trend. Armed with a nearly filibuster-proof majority in the Senate, and poised to replace the most “liberal” (sic) member of the Supreme Court, Obama seems ready to nominate someone whose progressive legal credentials are basically invisible.
Progressives – and indeed people of all political inclinations – should demand more. In theory, there’s nothing wrong with nominating someone to the Supreme Court who has never been a judge. And I have no reason to doubt that Elena Kagan is as fine a person as all her friends say she is. But in practice, a lifetime appointment to the Court should require more than having lots of friends in high places. Meriting such a position should involve clearing a very high evidentiary bar. In Kagan’s case, that bar seems to have been placed on the ground.