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He’s your president not your boyfriend


I heard a soundbite from UC-Irvine law dean Erwin Chemerinksy this morning about Kagan, in which he speculated that Kagan’s warmth and personal charm would endear her to senators during the confirmation process. I’ve never met Kagan but I wouldn’t be surprised if she could charm rust off a pipe — that would certainly help explain her otherwise somewhat inexplicable career.

Personally I think we should try to draw as sharp a distinction as possible between the Supreme Court nomination process and a sorority rush, but obviously a lot of Very Important People disagree.

In some respects this reminds me the ongoing one-sided love affair various progressive types have with Obama. I still like Obama just fine, probably because I’m suffering from Battered Liberal Syndrome, but he doesn’t make me feel all warm and fuzzy inside, dreamy though he admittedly is.

Update: I’ll be doing an interview regarding this topic on the Michel Martin’s NPR show Tell Me More at 11 AM EDT tomorrow. The other guest will be conservative law professor Stephen Bainbridge.

I’ll be arguing that Kagan’s nomination should be opposed because she’s a blank slate who could well move the court to the right, while Bainbridge will be arguing in favor of the nomination because she’s a blank slate who could well move the court to the right.

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  • Walt

    I don’t see how this is evidence of a one-sided love affair, rather than evidence that the nation’s legal establishment is a close-knit community that the rest of us are left out of.

  • For the record, the more anti-Kagan arguments devolve into rank dickishness, the less convincing they get to people who are basically agnostic about the pick.

    • Ed

      I’m not sure what ‘dickishness’ is involved in pointing out the obvious.

      • There’s a couple of unseemly factors that seem to be girding a lot of these anti-Kagan arguments. The first is sheer density. Kagan’s career trajectory isn’t “inexplicable,” in fact it’s highly explicable. It’s basically the same trajectory Roberts and Thomas followed which, while absurd, is simply what the current system incentivizes. Kagan has basically been groomed and managed specifically for a future role on the Court for the past 2 decades or so. Again, absurd, but such is our system.

        The dickishness is the “boyfriend” nonsense. That’s just childish.

        • This. Campos says she’s unqualified and attributes her success to “charm.” This is just another way of implying that Obama picked a glib lightweight because he’s one too. Next Glenn Greenwald will say Kagan uses teleprompters.

          • Paul Campos

            The Miers analogy seems to be confusing things. Nobody is claiming Kagan isn’t “qualified” in the sense of being an intellectual lightweight. But that’s the least important qualification for a SCOTUS justice (Earl Warren wasn’t exactly a legal genius after all).

            Her lack of qualifications center on the fact that either nobody knows what she thinks about anything important or they’re not saying.

            • Seriously? Being smart and knowing the law isn’t that relevant?

              • Paul Campos

                That’s what clerks are for

              • Being smart and knowing the law are baseline requirements, but in my experience as a lawyer the most valuable quality a judge– trial or appellate– possesses is temperament. A good judge should be engaged with the issues, and prepared to engage counsel. A good judge should be concerned with finding the just outcome under the law, but should avoid analysis that is or appears to be outcome determinative. A good judge is different from an academic expert. Academic experts know a lot about a narrow range of things; judges should know something about a lot of things. Academic experts tend to be invested in particular answers to questions in their field; judges should be interested in the right answer to the question that is before them. Appellate judges should also be persuasive advocates, but that is also different from being notably expert in a given field.

                Under these criteria Stevens had a terrific temperament. Thomas, I would argue, does not. Scalia thinks he does. Ginsburg actually does. Breyer sometimes does, and so does Kennedy.

                If being smart and knowing the law were all that there was to it there’d be a lot more people qualified for the job. As it is there are a lot more people qualified for the job than I bet most people think.

              • hv

                “Being smart and knowing the law isn’t that relevant?”

                No because those things are impossible to test in a politicized confirmation process.

                People said Miers was smart and knew the law. Was that sufficient then?

                I agree that a blank slate centrist should remain in the quiver for a time when nominations are more difficult.

  • wengler

    I think the problem is there is no real middle ground on perception of Obama. You either love him or you think he some sort of neocon pro-corporate plant.

    Personally I think he would be a pretty good President during more normal times, but his impulse to moderate or balance every single one of his policy proposals with the fringe right is going to make him mediocre. The papering over of the massive economic fraud that occurred under Bush is also going to ensure that this will be a double-dip depression with the second fall much worse than the first.

    • Incontinentia Buttocks

      I dunno Wengler. I think you just did an excellent job of describing a middle ground that I (and a lot of people I know) more or less embrace.

      I do think that he’s pretty bad on a lot of Constitutional issues, so disappointment over his court picks would have ensued even in more normal times, however.

      • wengler

        That may be true, though in other eras the deference to dictatorial executive authority and the supremacy of corporate power would be on the back burner as judicial issues and thus more irrelevent to an individual’s thoughts on those issues.

        I suppose it’s somewhat interesting that the typical “abortion is the only thing that matters to all sides in a judicial fight” doesn’t seem to be playing out quite the same here. It is as if the national political discourse has finally decided that other issues in jurisprudence matter too, perhaps as a result of the Citizens United ruling.

  • Anderson

    The Kagan push is so weird that it leaves me thinking what a genius she must be, because why *else* would she be the nominee?

    This however does not bode well for her dedication to principle. But for Obama, that is likely a feature, not a bug.

  • Davis X. Machina

    There are 200 Democrats who would do just fine as a replacement for Justice Stevens, between Federal and state appellate courts, top-tier law schools, interesting and important scholars, and people in the Federal and state executives, and the difference between #1 and #150, maybe between #1 and #200, isn’t worth going to war over.

    Which is precisely why people will go to war over it.

    • hv

      No, the point is that if you want to nominate #10 and #150, you must nominate #10 when you have more liberals in the senate. #150 can wait for the next slot.

      So, in effect, when #150 gets nominated at this time, many progressives get nervous that #1 – #149 are effectively out of the picture.

      #150 now sounds a lot like we’re getting #500 next time. Let’s fight that battle now.

      • Ed

        Exactly. This choice is disheartening in more than one respect. We’ll just have to keep our fingers crossed.

        I should be grateful, as I would have had to eat some crow if Obama beat my expectations of him and chose Wood, but he never lets me down in that respect.

        • Barbara

          you make it sound as if the ones in the top 200 can be listed in order of merit, as if there is one most qualified, followed by the second most aqualified, etc. This is the argument that opponents of affirmative action use. It is not persuasive there, and is not here.

          • hv

            You are confusing my demolition of the arguments of “Davis X. Machina” with advocacy.

            Unlike “Davis X. Machina” I do believe that there are qualitative differences among sets of the nominees. There is a huge value to me if they have taken strong and public stands (article or bench decision) supporting any of the big issues the SCOTUS encounters. I view blank slate nominees like Kagan as vastly inferior, and also a little cowardly, suggesting that progressives are afraid to advance our beliefs in daylight.

            However, it is still worth pointing out that: even if one did believe (like “DXM”) that this kind of dispute could be reduced to rankings, there still might be valid political reasons to attempt to reach higher than Kagan right now.


            I welcome a discussion of tools besides rankings we should use to evaluate nominees. Right now, we are looking for something besides “raised a lot of money as Dean” and “sparkling conversationalist.”

            • Davis X. Machina

              You want a decision tool?

              Democrat or Not-Democrat.

              The differences between court factions are now so extreme that any other tool — provided there is one besides “Do I like them” — measures at the margins, measures factors too slight to matter.

              The surface of the sun is pretty damn hot. You can call it 6000ºK or 5400ºC, and even worry about the difference, but it’s not comfortable by either measure.

              Arguments about relative degrees of progressivism in court nominees have roughly the same salience.

              • hv

                Thinking like that could’ve gotten Harriet Miers confirmed.

        • Oh for fuck’s sake, can we drop the Diane Wood bullshit? Of course she didn’t get picked. She’s not going to get picked. Ever. She. Is. 60. Years. Old. Yes, it’s absurd that that’s dispositive, but it is. And because of the silliness of the system, Wood is simply not going to be nominated to the Supreme Court. Not now, not ever. Not by Obama, not by any other Democrat who could be President now or in the future.

          • Scott Lemieux

            Um, he interviewed her twice, so he pretty obviously doesn’t share your view…

            • Scott Lemieux

              And by the way, to find the last time a Democratic president appointed a justice of (a little more than) Wood’s age, you’d have to go all the way back to…Ruth Bader Ginsburg. And Sotomayor will be 56 in a month. This is really silly.

  • “That’s what clerks are for”

    So…what? It’s more important that they “get it right” than know the law, because clerks can handle that?

    • Anderson

      Law journals and appellate judging are both heavily influenced by people who are either law students or fresh out of law school. People only a year out of law school may well be drafting Supreme Court opinions.

      Seems kinda odd, when you think about it.

    • hv

      If you don’t think that Supreme Court Justices often decide to get it right, then make up the supporting law after — you need to get out more.

      Clerks just make it sound pretty.

  • Anderson

    Eugene Volokh has an interesting “Kagan as Scholar” post up, for those who care about such things.

  • John

    This is like a giant dick-off, where Kagan proponents and opponents compete to see how dickish they can be. So on the one hand, this post from Paul. On the other hand, we have this ridiculous entry from Marty Peretz. I don’t know who to root for here.

    • Incontinentia Buttocks

      Perhaps look at the substance of the arguments on both sides and don’t make up your mind based on your assessment of the tone of those making the arguments?

    • hv

      Perhaps you should decide where the burden of proof lies in this argument?

      • Voloch’s post about Kagan’s scholarship is quite a bit more impressive than Paul’s.

  • Hey, Obama is no Jonas Brother, but he’s still pretty dreamy.

  • Greg

    this whole “he’s your president, not your boyfriend” thing seems strikingly similar to the George “I’d rather have a beer with him than Al Gore” Bush thing. For me, it’s kind of like parents who try to be friends with their children, I just don’t get it; we shouldn’t want our buddy from down the bar to be the President, nor should most of us want our boyfriends to be Presidents.

  • Barbara

    Douglas had three years on the SEC when he was appointed the Supreme Court. And I disagree that because law clerks are there, the justice does not need to know the law. That is just silly – under that theory, why have judges? Why not have the law clerks decide the cases on their own? You just sound peevish about this appointment. She is probably not the most liberal person in the world – but then, neither is Obama. I agree with Davis X – there are lots of qualified people; she is one of them – and not just a popular kid who got nominated because she is fun at parties or whatever you think motivated Obama.

  • Simple Mind

    Just wondering if Elena is related to the neocon Kagan tribe that has been terrorizing academia on the Atlantic coast?

    • hirst

      No, she isn’t.

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